HomeMy WebLinkAbout05-4728
MAX A. FAHNESTOCK and
DORIS E. FAHNESTOCK,
Plaintiffs/Petitioners
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. tJ5- L/7.;J-? ~
v.
: CIVIL ACTION - LAW
MOUNT HOLLY SPRINGS
ZONING HEARING BOARD,
Defendant/Respondent
: JURY TRIAL DEMANDED
APPEAL OF CONDITIONAL LAND USE DETERMINATION
COMES NOW, the PlaintiffslPetitioners, Max Fahnestock and Doris E. Fahnestock, by
and through their counsel, Mark A. Mateya, Esquire and Anthony DeLuca, Esquire and in
support avers the following:
PARTIES
1. Plaintiffs/Petitioners herein are Max A. Fahnestock and Doris E. Fahnestock, adult
individuals who presently reside at 23 South Baltimore Avenue, Mount Holly Springs,
Cumberland County, Pennsylvania 17065.
2. Defendant/Respondent, Mount Holly Springs Zoning Hearing Board, is a hearing
board empowered by the Borough of Mount Holly Springs to address among other things,
requests for special exception uses, having a business address of 200 Harmon Street, Mount
Holly Springs, Cumberland County, Pennsylvania 17065.
BACKGROUND
3. PlaintiffslPetitioners are the owners of real estate located at 17 South Baltimore
Avenue, as well as premises at 19 and 23 South Baltimore Avenue, Mount Holly Springs,
Cumberland County, Pennsylvania 17065 with the 23 South Baltimore Avenue address being
their residence.
4. Defendant/Respondent is zoning hearing board in an incorporated borough of the
Commonwealth of Pennsylvania.
5. Defendant/Respondent's Zoning Officer informed Chung Lin, who is the
owner/operator of a restaurant on adjoining real estate to PlaintiffslPetitioners, that Mr. Lin was
permitted to open a restaurant.
6. At some point after opening the restaurant, Mr. Lin was informed by the Zoning
Officer that he would have to apply and be approved for a special exception in order to continue
his restaurant at that location.
7. The unit located at 15 South Baltimore Avenue, Mounty Holly Springs, Pennsylvania
is located in a multi-unit commercial complex.
8. The restaurant is vented by an exhaust fan onto the alley between the restaurant and
the Fahnestock properties.
9. PlaintiffslPetitioners allege that the restaurant owned and operated by
Defendant/Respondent has a fan that 1) vents a very pronounced and strong odor, 2) emits a
noise level which is bothersome and disturbs the neighborhood, and 3) protrudes too far into the
alley.
10. The fan from Defendant/Respondent's restaurant is located in such a manner as to
project into the alleyway between the parties respective properties which creates a safety hazard.
11. The Mount Holly Springs Zoning Hearing Board met on Tuesday, July 12, 2005, and
August 9, 2005, at which time and place testimony was taken. A Decision resulted from the
Zoning Hearing Board dated August 11,2005. A copy of the Decision of the Zoning Hearing
Board dated August 11,2005, is attached hereto as Exhibit "A" and is incorporated herein by
reference.
ISSUES COMPLAINED OF ON APPEAL
12. PlaintiffslPetitioners believe and aver that the decision of the Mount Holly Springs
Hearing Board is in error in holding that the exhaust fan in question is not a hazard, does not
protrude too far into the alley, and does not emit noise or odors such as bothersome and
disturbing to the neighborhood; special exception should, therefore, be denied or granted
contingent upon the removal of said fan.
WHEREFORE, PlaintiffslPetitioners appeal the decision of the Mount Holly Springs
Zoning Hearing Board of August 11, 2005, and request that this matter be scheduled for a
hearing as soon as conveniently possible for this Honorable Court.
Respectfully submitted,
lit
Date:
q}iL 0\
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Mark A. Matey Esquire
Attorney ill No. 78931
P.O. Box 127
Boiling Springs, P A 17007
(717) 241-6500
(717) 241-3099 Fax
CERTIFICATE OF SERVICE
I, hereby certify that I have served a copy of the foregoing Notice of Appeal on the
following person(s) by depositing a true and correct copy of the same in the United States Mail,
first class, postage prepaid, at Boiling Springs, Cumberland County, Pennsylvania addressed to:
MOUNTHOLLYSProNGZONmGBOARD
MUNICIP AL BUILDING
200 HARMAN STREET
MOUNT HOLLY P A 17065
[J~ '
Mark A. Mateya, Esquire
P.O. Box 127
Boiling Springs P A 17007
(717) 241-6500
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ZONING HEARING BOARD OF
MOUNT HOLLY SPRINGS
. RE' CHUNG LIN
': 15 SOUTH BALTIMORE AVENUE
: MOUNT HOLLY SPRINGS, P A
. CASE NO: 002-2005
~ DATE OF DECISION: AUGUST 9, 2005
DECISION OF THE
ZONING HEARING BOARD
The Mount Holly Springs Zoning Hearing Board (herein, Board) met on Tuesday, July 12
and Tuesday, August 9,2005 at 7:30 P.M., in the Hearing Room of the Municipal Building at 200
Hannan Street, Mount Holly Springs, Cumberland County, Pennsylvania, at which times and place
testimony was taken in a hearing for captioned application.
A request has been submitted by Chung Lin for approval of a special exception to establish
a Chinese restaurant, without drive-through facilities (Restaurant), in a unit of a commercial property
at 15 South Baltimore Avenue. The premises is situated in the V - 2 [Village District 2] District.
Section 502B(2) ofthe Mount Holly Springs Zoning Ordinance permits a restaurant, without drive
through facilities, as a special exception in the V -2 [Village District 2] Zone.
Chung Lin, the Applicant, and Dennis Gotthard, the owner of the premises, testified in favor
of the application, as did an adjoining tenant, Rita Boyer. Max Fahnestock, the immediate
landowner to the south, testified in opposition to the request. Other neighbors, Pam Still, Rebecca
O'Donnell, Shannon Schmitt, and Vicky Fahnestock also testified in opposition. Mr. Fahnestock
was represented by Mark A. Mateya, Esquire. Mr. Lin appeared pro se.
From the testimony, the Board makes the following:
FINDINGS OF FACT
1. The property is located in the V -2 Village District 2.
2. The use, a Chinese restaurant, is being conducted in a unit of the premises at 15
South Baltimore Avenue.
3. The property at 15 South Baltimore Avenue is owned by Dennis Gotthard.
4. The Restaurant commenced business in January, 2005, and has been in continuous
operation since that time.
I
EXHIBIT
A
18.
--- .~u ." allVIUXImatety 6 feet above grade f
type and is mount db' ' 0 a torpedo
T . e ~. ove an aIr conditioning unit placed at grade.
he fan and aIr CondItIoning unit are de icted 0 .
Exhibits 1 4 . P n photos admItted as Protestants'
- , as IS an outdoor staircase which has existed fc
or many years.
2
noise and cooking odors emanating from the fan on the side of the building.
. Before addressing the special exception request, the Board finds that the testimony presents
an Issue as to whether the Applicant acquired a vested right to the permission and permits issued by
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5. The unit is located in a multi-unit commercial complex serviced by an on-site
parking lot which is shared by other tenants.
6. The unit was previously used as a pizza shop for approximately 13-15 years.
7. Prior to occupying the premises, and upon his inquiry, the Applicant was infonned
by the Borough's Zoning Officer, Dennis Russell, that his use was permitted.
8. Other agencies havingjurisdiction over building matters infonned the Applicant that
he could proceed to open the Restaurant.
9. Based on the assurances from the Zoning Officer and other authorities, the Applicant
committed substantial funds to a lease, equipping the restaurant and replacing the
exterior fan system.
10. At all relevant times, the Applicant acted in good faith.
11. Based on the assurances, the Applicant commenced his business in January, 2005.
12. The Applicant is a naturalized United States citizen who has a limited ability to speak
English and who operates various restaurants in the area.
13. The Applicant used due diligence in seeking approvals prior to commencing his
business.
14. At some point after commencing his business, the Applicant was informed by the
Zoning Officer that he would have to apply and be approved for a special exception
in order to continue the Restaurant at this location.
15. Max Fahnestock owns the adjacent property at 17 South Baltimore A venue, as well
as premises at 19 and 23 South Baltimore Avenue.
16. The Fahnestock property is separated from the subject premises by an alley and,
although it is unclear whether the alley is public or private, it has been used by the
public and the owners ofthe adjoining properties for many years. A deed restriction
prohibits obstructing its use.
17. The Restaurant is vented by an exhaust fan onto the alley between the Gotthard and
Fahnestock properties. The fan is approximately 6 feet above grade, of a torpedo
type and is mounted above an air conditioning unit placed at grade.
18. The fan and air conditioning unit are depicted on photos admitted as Protestants'
Exhibits 1-4, as is an outdoor staircase which has existed for many years.
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19. The fan and air conditioning unit do not project further into the alley than the outdoor
staircase.
20. The fan, air conditioning unit and staircase do not obstruct vehicular traffic using the
alley.
21. Not one witness opposed the use of the premises as a restaurant.
22. The fan is located in the same physical location as a prior fan, of different type,
which serviced the pizza shop.
23. Neighbors testified that the fan emits a noise typical of exhaust fans and vents
cooking odors amounting, at worst, to a "nuisance," "not intolerable" and "slightly
annoying. "
24. Mr. Fahnestock claims that the fan vents a very pronounced and strong odor. The
Board finds the testimony of the neighbors to be more credible than Mr.
Fahnestock's testimony in this respect.
25. The cooking odors emanating from the fan do not interfere in a meaningful or
substantial manner with the neighbors residential activities.
26. Mr. Fahnestock previously appeared before this Board to express concerns about the
uses in the Gotthard property (See Docket No. 001-2005), and has personal issues
with Mr. Gotthard.
DISCUSSION
The proposed use is a restaurant with no drive-through facilities and is pennitted by special
exception in the V -2 Village District 2 Zone. 9502B(2), Mount Holly Springs Zoning Ordinance
(herein, Ordinance). The applicant for a special exception has the burden to demonstrate that he
meets the criteria specified in the zoning ordinance. Those criteria are set forth in Section 901A of
the Ordinance. As a special exception use, and given the commercial nature of the area, the Board
finds that the use is consistent with the intent of the Ordinance. In this respect, not one witness
testified in opposition to the use of the premises as a restaurant. The testimony related solely to the
noise and cooking odors emanating from the fan on the side of the building.
Before addressing the special exception request, the Board finds that the testimony presents
an issue as to whether the Applicant acquired a vested right to the permission and pennits issued by
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relevant authorities in January, 2005. In Petrosky v. Zoning Hearing Board of Upper Chichester
Township, 485 Pa. 501,402 A.2d 1385 (1979), the Supreme Court of Pennsylvania adopted five
criteria relating to vested rights as set forth by the Commonwealth Court of Pennsylvania in
Department of Environmental Resources v. Flynn, 21 Pa. Commw. 264, 344 A.2d 720 (1975):
1. The Applicant's own due diligence.
2. His good faith.
3. His expenditure of substantial unrecoverable sums.
4. The expiration of the applicable appeal period.
5. Absence of injury to the public interest.
The Applicant testified that the zoning officer and other affecting agencies gave him
unconditional approval to open his business in early 2005. Given his limited background and those
assurances, he had no reason to question his right to proceed. He in acted good faith. Whether he
purchased the assets of the previous pizza shop, or outfitted the restaurant with new equipment, it
is obvious that he expended substantial funds in committing to a lease and purchasing restaurant
equipment, including the replacement fan. The appeal period has long since expired and the Board
finds no significant injury to the public interest. Under these circumstances, the Applicant acquired
a vested right to continue his use and consideration of the special exception request need go no
further.
Nevertheless, the Board also finds that the requirements for approval of a special exception
are met in this case. A restaurant use in this location is consistent with the intent of the zoning
ordinance, as it is specifically identified as a use to be allowed as a special exception in this zone.
Given that a pizza shop previously existed in the neighborhood for many years, the Board finds no
substantial change in the neighborhood. Further, adequate facilities, including municipal utilities
and parking, exist to serve the use. The use is not in conflict with other laws and there is no evidence
that it will result in traffic congestion or other safety hazards. The building has been used
commercially for a number of years. No structural changes to the building exterior were projected
and no site changes will be made. No testimony was presented to demonstrate that light intensity,
litter, noise, hours of operation or other factors would adversely affect the adjoining uses.
The Board finds that the opposition is solely aimed at the fan direction and cooking smell,
not the restaurant use. The neighbors categorized the odor as more of an outside nuisance or
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annoyance and the Board finds that no significant adverse effect is being caused by the use. No one
substantiated a loss in property value, damage to property (clothes) or significant loss in the ability
to enjoy their residences. Most restaurants generally emit cooking smells into the surrounding area.
Although there was testimony that this restaurant may emit stronger odors, the testimony does not
support a finding that the odors have a significant adverse impact on the neighborhood. Indeed, the
next door tenant, Rita Boyer, testified that she experiences no odors from the restaurant and the other
neighbors described the odor as more of an annoyance than a serious detriment on their use of their
properties. Mr. Fahnestock categorized the odor in stronger tenns, but the Board finds the other
witnesses to be more credible in this regard. Additionally, given that the Applicant received all
building approvals, the Board can assume that the exhaust system meets governmental requirements
and no testimony was presented to the contrary. The Board further queries, had Mr. Lin obtained
the special exception prior to opening, whether he would have encountered opposition on the basis
of cooking odors.
CONCLUSIONS OF LAW
1. At all relevant times, the Applicant acted in good faith with due diligence.
2. The applicant reasonably relied on the pennission from the Zoning Officer and other
authorities and committed substantial unrecoverable funds to the Restaurant.
3. A restaurant, without drive-through facilities, is a permitted special exception use in
the V -2 [Village District 2) Zone under Section 502B(2) of the Ordinance.
4. The Applicant has met his burden for allowance of the grant of a special exception
for the Restaurant at the subject premises.
5. No one demonstrated by credible evidence that there would be substantial adverse
impact from the proposed use which would warrant denial of the request.
6. The Restaurant has caused no injury to the public interest.
7. The Applicant has a vested right to continue the Restaurant use.
8. The request for a special exception to establish a restaurant without drive-through
facilities at the subject premises must be approved.
5
MAX A. FAHNESTCX:K AND
OORIS E. FAHNESTCX:K
VS.
M)UNr HOLLY SPRINGS
ZONING HEARING OOARD
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-4728
CIVIL
19
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
55.
COUNTY
OF
CUMBERLAND)
TO: M)UNr HOLLY SPRINGS ZONING HEARING OOARD
We, being willing for certain reasons, to have certified a certain action
between MAX A. FAHNESTCX:K AND OORIS E. FAHNES~K VS. MOTJN'T' HOLLY SPRTNGS 7.0NTNG
HEARING OOARD
pending before you, do command you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within
20
days of the date hereof,
together with this writ; so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
WITNESS, the Honorable George E. Hoffer, P.J.
our said Court, at Carlisle, Pa., the
12 day of September
, ~ 2005.
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ORDER OF THE BOARD
The Applicant has a vested right to continue his restaurant use at the subject premises.
Further, and to the extent applicable, the Applicant's request for a special exception to establish a
restaurant, without drive-through facilities, at the subject premises is approved.
Anyone aggrieved by the decision of the Board with respect to the grant of the application
has the right to appeal to the Cumberland County Court of Common Pleas within thirty (30) days
from the date of this decision.
Date:
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102595-0Z-M.1540
MAX A. FAHNESTOCK and
DORIS E. FAHNESTOCK,
Appellants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 05-4728 CIVIL
MOUNT HOLLY SPRINGS
ZONING HEARING BOARD.
Appellee
: ZONING APPEAL
RECORD
I. Application of Chung Lin for premises at IS S. Baltimore Avenue, Mount Holly
Springs, Pennsylvania.
2. Proof of publication of public notice for proceedings of July 12, 2005.
3. Proof of publication of public notice for proceedings of August 9. 2005.
4. Notice to property owners and attached list of addressees.
5. Objector's Exhibits 1-4, consisting of photographs of the subject premises and
environs.
6. Transcript of proceedings, Volume I, July 12,2005.
7. Transcript of proceedings, Volume II, August 9, 2005.
8. Applicant's consent to extension ohime for decision.
9. Decision of the Zoning Hearing Board dated August 11.2005.
10. Copy of Section 2 of Ordinance No. 2001-01, amending the Mount Holly Springs
Zoning Ordinance, to include Section 502B which permits restaurants as a special
exception use in the Village District 2.
11. Copy of Section 4 of Ordinance No. 2001-01. amending the Mount Holly Springs
Zoning Ordinance, to include Section 901A which provides additional requirements
for special exception uses.
12. Copy of Section 90 I of the Mount Holly Springs Zoning Ordinance, which provides
requirements for special exception uses.
Respectfully submitted,
~~-
Edward L. Schorpp, Esquire
Attorney I.D. No. 17495
35 South Thrush Drive
Carlisle, P A 17013
Telephone: (717) 486-8386
Email: elschorpp@comcast.net
Solicitor for Zoning Hearing
Board of Mount Holly Springs
DATED:
October II, 2005
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lJ' YOt; RAVE }illY Q1!ESTIONS ABOUT THIS
APPLICATION PLEASE CONTACT THE ZONING OFFICER.
APPLICATION FEE IS
DATE PAID ,'1-=-/9-65-
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C'...J< 13;l.
REVIEWED BY THE ZONING OFFICER ON
(DATE & INITIALS)
ZONING HEARING APPLICATION
BOROUGH OF MOUNT HOLLY SPRINGS
NA~E AND ADDRESS OF APPLI CA,NT: . J
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WE/I THE ABOVE HEREBY REQUEST A HEARING WITH THE ZONING HEARING BOARD
OF MOUNT HOLLY SPRINGS FOR THE PURPOSE OF:
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THE ABOVE IS APPLICABLE TO THE FOLLOWING SECTIONS OF THE MOUNT HOLLY
SPRINGS ZONING ORDINANCE:
ARTICLE:
SECTION:
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,/)LJ,;2. 13.-2.
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DATE
SIGNATURE OF APPLICANT or REPRESENTATIVE
ZONING HEARING BOARD
MOUNT HOLLY SPRINGS, PA.
Applicant's Name:
Property Location:
Date:
I the undersigned attest to whatever l'S
on this document is
correct and true.
OF PROPERTY OWNERS WITHIN A 300 FEET RADIUS OF THE ABOVE MENTIONED PROPERTY.
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PROOF OF PUBLICATION
State of Pennsylvania. County of Cumberland
Tammy Shoemaker, Classified Advertising Manager, of The Sentinel, of the County
and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a
newspaper of general circulation in the Borough of Carlisle, County and State
aforesaid, was established December 13th, 1881, since which date THE SENTINEL has
been regularly issued in said County, and that the printed notice or publication
attached hereto is exactly the same as was printed and published in the regular editions
and issues of THE SENTINEL on the following day(s)
Tune 28, Julv 05,2005.
COPY OF NOTICE OF PUBLICATION
NOTICE
The Zoning-Hearing Board of Mt. Holly Springs will.
conduct a public hearing at the request of Chung H. Un
of 420 Dogwood Court, Carlisle, PA. The hearing will be
held for the purpose of opening a Chinese restaurant at
15 South Baltimore Avenue, Mt. Holly Springs, PA. The
above is applicable to Article V-2, Section 502.8.2 oftha
Mt. Holly Springs Zoning Ordinance.
The hearing will be at the 1'v1t. Holly Springs Borough
Office, 200 Harmon Street, Mt. Holly Springs. PA on
Tuesday, July 12th, 2005, a17:30 p.m.
Affiant further deposes that he/ she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
~j~:~~~ true. ~bJ-
-~.-.--------- ---...-..-.----........,..--
Sworn to and subscribed before me this
6th day of July, 2005.
r -L,w ila >9. ~
Notary P c
My commission expires: q /1 h t
COMMONWEAL Th 01' PENNSYLVANIA
Notarial Seal
Chnsjj!la 1__ Wd.fe, Notary Public
Carlisle Soro, Cumberland County
~ My Commission Expires Sept 1, 2008
Member Pennsylvania Association Of Notaries
,
\ \
General Government
(717) 486-7613
Water & Sewer
(717) 486-7601
BOROUGH OF MOUNT HOLLY SPRINGS
f.
:railey :~ holly
200 Hi\R\'lAN STREET rvl0UN' HOLLY SPRINGS
ce'ir.,jS'(L'I!\t'JiA. -j 7C65
Fax
(717) 486-4135
June 12, 2005
The Sentinel
457 E. North Street
Carlisle, PA 17013
RE: LEGAL ADVERTISEMENT
Dear Advertisement Department:
Please insert the following notice in The Sentinel on Tuesday, June 28th and
Tuesday, July 5th ; and furnish us with written proof of publication.
NOTICE
The Zoning Hearing Board ofMt. Holly Springs will conduct a public hearing at the
request of Chung H. Lin of420 Dogwood Court, Carlisle, PA. The hearing will be held
for the purpose of opening a Chinese restaurant at IS South Baltimore Avenue, Mt. Holly
Springs, PA. The above is applicable to Article V-2, Section 502.B.2 of the Mt. Holly
Springs Zoning Ordinance.
The hearing will be at the Mt. Holly Springs Borough Office, 200 Hannon Street, Mt.
Holly Springs, PA on Tuesday, July 12th, 2005, at 7:30 p.m.
Sincerely,
~a~ It~
Secretary, Mount Holly Springs Zoning Hearing Board
PROOF OF PUBLICATION
State of Pennsylvania, County of Cumberland
Tanuny Shoemaker, Classified Advertising Manager, of The Sentinel, of the County
and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a
newspaper of general circulation in the Borough of Carlisle, County and State
aforesaid, was established December 13th, 1881, since which date THE SENTINEL has
been regularly issued in said County, and that the printed notice or publication
attached hereto is exactly the same as was printed and published in the regular editions
and issues of THE SENTINEL on the following day(s)
Tulv 26, August 02,2005
COPY OF NOTICE OF PUBLICATION
~'-""""-''''''~'''-''._...--_._,,'-
J:lQIlg;
The Zoning Hearing Board of Mt. Holly Sprinqs will
conduct a plJblic hearing at the request of Bretzman's
Garage, 1 Stuart Street, Mt. Holly Springs for the
purpose of adding one bay to the garage on an existing
concrete pad. This applies to Article Xl, Section 11148
at the Mt. HoUy Springs Zoning Ordinance.
Also requestlng a hearlng is G&G Enterprises at 219
North Baltimore Avenue. Mt. Holly Springs for the f
purpose of construction of a parking lot in the V.1 district
on three parcels on the east side of North Baltimore
Avenue. Parking is forexisttl1g tenants of 2.19 North
Baltimore Avenue. This applies to Article V-A, section
501 A.3 of the Mt. Holly Springs Zoning OrdInance.
A continued hearing will also De held at the request of
Chung Un regarding his special exception request for a
Chinese restaurant at 15 South Baltimore Avenue, Mt.
Holly Springs.
The hearing will be at the Mt. Holly Springs Borough
Office, 200 Harman Street, Mt. Holly Springs. PA on
Tuesday, August 9th" 2005 at 7:30 p.m.
Affiant further deposes that he! she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
J:m-~"iZ';d1tt~
Sworn to and subscribed before me this
03rd day of August, 2005.
--
C~L() QI1tV ~/ t();elL-
Notary PuQTic
My commission expires: q / i kif
,
!
i
,
Member, PQ;nnsyhian\a )\$'.sociallon Of Notariel::'
COMMOi\iW~.n"LTM:':;i;;; PENNSYLV,~NIA
Notanal Seal I
Christina L. Welfe, Notary Public 1
Cartisle Bom, Cumbertand County \
i'vly Commission Expires Sept 1, 2008 I
L
mlle1 i~ )~Il\,
200 HARNt~;\j STREET MOUNT HOLLY SPRiNGS
PEi'JNSYL 'jl';j\jIA 17065
General Government
(717) 486-7613
Water & Sewer
(717) 486-7601
Fax
(717) 486-4135
BOROUGH OF MOUNT HOLLY SPRiNGS
July 19,2005
The Sentinel
457 E. North Street
Carlisle, PA 17013
RE: LEGAL ADVERTISEMENT
Dear Advertisement Department:
Please insert the following notice in The Sentinel on Tuesday, July 26th and
Tuesday, August 2nd and furnish us with written proof of publication.
NOTICE
The Zoning Hearing Board ofMt. Holly Springs will conduct a public hearing at the
request ofBretzman's Garage, 1 Stuart Street, Mt. Holly Springs for the purpose of
adding one bay to the garage on an existing concete pad. This applies to Article Xl,
Section 11 l4B of the Mt. Holly Springs Zoning Ordinance.
Also requesting a hearing is G&G Enterprises at 219 N. Bahimore Avenue, Mt. Holly
Springs for the purpose of construction of a parking lot in the V -1 district on three parcels
on the east side of North Baltimore Avenue. Parking is for existing tenants of219 N.
Baltimore Avenue. This applies to Article V-A, section 501A.3 of the Mt. Holly Springs
Zoning ordinance.
A continued hearing will also be held at the request of Chung Lin regarding his special
exception request for a Chinese restaurant at 15 South Baltimore Avenue, Mt. Holly
Springs.
The hearing will be at the Mt. Holly Springs Borough Office, 200 Harmon Street, Mt.
Holly Springs, PA on Tuesday, August 9th, 2005 at 7:30 p.m.
Sincerely.
r. 1... -.-tr
\ - ,;..,1\'_ " ,--,x~!-l,.",'lL.!\~'_ '_ !,\.-:. J.
__-~~A.~olV~ -7' r -~. , 'r
Cyrithia Stratton Thompson '
Secretary, Mount Holly Springs Zoning Hearing Board
BOROUGH Of MOUNT HOLLY SPRINGS
General Government
(717) 486-7613
Water & Sewer
(717) 486-7601
2]:;0 HP.,Pj\j1A.0J ~3-REc: MOU/"ij HOI_LY SPRiNGS
F~i"-ij\iS\ L'I;".NIA i 7065
Fax
(717) 486-4135
June 15,2005
To Whom It May Concern:
NOTICE
The Zoning Hearing Board ofMt. Holly Springs will conduct a public hearing at the
request of Chung H. Lin of 420 Dogwood Court, Carlisle, P A. The hearing will be held
for the purpose of opening a Chinese restaurant at 15 South Baltimore Avenue, Mt. Holly
Springs, PA. The above is applicable to Article V-2, Section 502.B.2 of the Mt. Holly
Springs Zoning Ordinance.
The hearing will be at the Mt. Holly Springs Borough Office, 200 Harmon Street, Mt.
Holly Springs, P A on Tuesday, July 12'h, 2005, at 7:30 p.rn.
You have been notified of this because your property is within a 300- foot radius of the
above-mentioned property.
Sincerely,
rl'~~~ l~~4'"
~~a Stratton Thompson \
Secretary, Mount Holly Springs Zoning Hearing Board
ZONING HEARING BOARD
MOUNT HOLLY SPRINGS, PA.
Applicant's Name:
NAME AND ADDRESS OF APPLICANT:
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If>o .001 IAJv-c.P
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I the undersigned attest to whatever
is on this document is
correct and true.
Property Location:
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OF PROPERTY OWNERS WITHIN A 300 FEET RADIUS OF THE ABOVE MENTIONED PROPERTY.
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1
1
MOUNT HOLLY SPRINGS
ZONING HEARING BOARD
MOUNT HOLLY SPRINGS, PENNSYLVANIA
2
3
4 IN RE: Chung H. Lin
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7
OR'G'NAL
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9
TRANSCRIPT OF PROCEEDINGS
(VOLUME I pgs 1-62)
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BEFORE:
DOUGLAS MOTTER, Chairman
JAMES SLYDER, Vice President
CYNTHIA THOMPSON, Secretary
WILBUR SHIREY, Alternate Member
LINDA NAUGEL, Council Liaison
12
13
14
EDWARD L. SCHORPP, SOLICITOR
15
DATE:
July 12, 2005, 7:35 p.m.
16
PLACE:
200 Harman Street
Mt. Holly Springs, Pennsylvania
17
18
19 APPEARANCES:
20
BY: MARK A. MATEYA, ESQUIRE
FOR - APPELLANT
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23
Jennifer L. Sirois, Court
Reporter, Notary Public
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WITNESSES
Max Fahnestock
Pamela Still
Rebecca O'Donnell
Shannon Schmitt
Vicki Fahnestock
INDEX TO TESTIMONY
DIRECT
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CROSS
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REDIRECT
RECROSS
3
1 PROCEEDINGS
2 MR. MOTTER: Let's call this meeting to order.
3 This is the request of Chung H. Lin of 420 Dogwood Court,
4 Carlisle, who is seeking a special exception to the
5 ordinance for a restaurant. Present at this meeting is
6 myself, Douglas Motter, chairman; Jim Slyder, vice
7 president; Cynthia Thompson, secretary; Will Shirey,
8 alternate board member; Ed Schorpp, solicitor; Linda Naugel
9 (phonetic), council liaison.
10 This is a hearing, and as such, all persons
11 presenting comments and testimonies at this time must do so
12 under oath. All persons intending to give comment or
13 testimony shall please rise and raise their right hand
14 while the court reporter administers the oath.
15 (Witnesses sworn en masse.)
16 MR. MOTTER: Okay. At this time, is anybody
17 here representing the restaurant?
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MR. GOTTHARD: I'm sorry? I can't hear you.
MR. MOTTER: Besides yourself, sir.
MR. SCHORPP: Are you the owner of the property?
MR. GOTTHARD: Yes, sir.
MR. SCHORPP: Did you consent to the
application?
MR. GOTTHARD: What, sir?
MR. SCHORPP: Did you consent to the
4
1 application?
2 MR. GOTTHARD: Yes.
3 MR. SCHORPP: I think as owner of the property,
4 he can testify.
5 MR. MATEYA: If I may, on the record, I'm going
6 to make an objection because he is not requesting this
7 board of a special exception.
8 MR. SCHORPP: Well, but he's the owner of the
9 property, and he's consenting to the application.
10 MR. MATEYA: That's true, but that is a
11 difference with a distinction. I don't believe there's any
12 case law to support him being able to do so, and I'm fairly
13 sure there is no statutory law that allows him to stand in
14 their shoes.
15 MR. SCHORPP: What would you say if he signed
16 this application?
17 MR. MATEYA: It would depend if he owned that
18 business or not. If he owned the business and he signed
19 the application, then he
20 MR. SCHORPP: Your position is the owner of the
21 property cannot apply for a use on the property even if
22 he's not the owner of the use?
23 MR. MATEYA: The only person that can ask for a
24 special exception under the rules the way, under the
25 ordinance the way it's drafted here, it seems to me, is the
5
1 person who wants that special exception. In fact, Mr. Lin
2 not only knew that this meeting was to be held, but he
3 requested it. And, in fact, if Mr. Gotthard was to
4 represent him, he could have hired an attorney to do so,
5 and he could have hired a trans later to be here.
6 This is not extraordinary, and he didn't just
7 find out we were going to hold it in English. No offense
8 to him, but, I mean, this is not -- we are not asking for
9 anything extraordinary here in Mount Holly Springs. I'm
10 going to defer to you. If you say that, as the owner, he
11 can speak, I'm willing to abide by your rule. I'm telling
12 you, I think, according to the rule of law, I don't think
13 he can.
14 MR. SCHORPP: Well, equitable owners, it is not
15 uncommon for owners of property who have agreed to sell
16 their properties to apply for zoning permissions.
17 MR. MATEYA: You're absolutely right.
18 MR. SCHORPP: And I view this similar, the
19 difference being we're speaking about a tenant or someone
20 under an agreement of sale.
21 MR. MATEYA: That is the difference with the
22 distinction because the person who's about to purchase it
23 is going to now have full ownership. The person here who
24 runs the business won't own this property at anytime in the
25
foreseeable future.
I understand what you're saying, but I
6
1 think it's a difference with a distinction because the
2 owner who is getting a variance because they want to put a
3 golf course on the 70 acres is going to do so because they
4 have three people who want to buy a golf course. This is
5 very different.
6 MR. SHIREY: Wouldn't it be reasonable for you
7 to pick one side or the other of the issue to stand on,
8 either the hearing can be conducted or you object to it?
9 MR. SCHORPP: His objection's on the record, and
10 I'm going to advise the board to go ahead and conduct the
11 hearing. And you can take his objection further if that's
12 what he wants to do depending on whatever the outcome is.
13 MR. MATEYA: Exactly. And that's the reason.
14 It's just so that should indeed we need to go further, the
15 objection's on the record. Had I not made this
16 objection -- I'm not trying to be cantankerous, Mr.
17 Schorpp.
18 MR. SCHORPP: No, I understand.
19 MR. MATEYA: I now have preserved that for the
20 future. That's all.
21 MR. SCHORPP: Okay. Mr. Gotthard, as the owner
22 of the property, do you have anything to say on this
23 application?
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MR. GOTTHARD: Should I stand?
MR. SCHORPP: Well, you should come up and be
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sworn in.
COURT REPORTER: He's sworn in.
I just need your name, please.
MR. GOTTHARD:
COURT REPORTER:
MR. GOTTHARD:
Dennis Gotthard, G-o-t-t-h-a-r-d.
Thank you.
I've been the owner of the
property about 18 years.
Where Mr. Lin is, there's been a
restaurant there for probably 15 years. It's been a pizza
shop for most of that time. And he's a very good tenant,
very hard worker, has done everything that the borough's
requested of him in regards to putting in stuff.
He's put, I think, $30, $40 thousand into the
place, and I think he brings a lot to this town, good
hard-working citizen. I don't know what the objection is,
but he did not know before he started, nor did I, that
there was an ordinance in. I only learned it when Curves
came in, but I think he adds to the community. Do you have
any questions?
MR. MOTTER:
MR. SCHORPP:
Thank you. Anybody else?
Do I understand the tenant is
currently in the premises operating the restaurant?
MR. GOTTHARD: I'm sorry?
MR. SCHORPP: Do I understand the tenant is
currently in the premises operating the restaurant?
MR. GOTTHARD: Yes, sir.
8
1 MR. SCHORPP: And how long has he been there?
2 MR. GOTTHARD: I believe operating, I think,
3 since January 1st. He did construction work before that to
4 get it ready, but I believe, I believe the 1st of January.
5 MR. SCHORPP: Okay. Thank you.
6 MR. GOTTHARD: And I might add, you know, it's
7 been a restaurant for 13 or 14 years before that. It's
8 just a change of different type of restaurant as far as I
9 can see or understand.
10 MR. MOTTER: Anybody else?
11 MR. SCHORPP: Does anyone else want to speak on
12 behalf of the application?
13 MR. MOTTER: Okay. At this time, anybody that
14 opposes?
15 MR. MATEYA: Okay. If it please the board, my
16 name's Mark Mateya, and I am here pinch hitting for Anthony
17 Deluca, who has been before this board before. I am
18 representing Mr. and Mrs. Fahnestock who own property that
19 is across the alleyway from the property in question. What
20 I'd like to do is give you just a brief overview and then
21 identify the points of what I'd like to cover.
22 MR. SCHORPP: Don't give us an argument, just
23 testimony.
24
MR. MATEYA: Actually I'm not going to give you
25 testimony. I am going to bring -- because I'm not sworn.
9
1 I'm the attorney.
2 MR. SCHORPP: Well, I understand. Are you
3 presenting testimony?
4 MR. MATEYA: What I'm going to do is present the
5 overview of the argument, the legal argument, and then I'm
6 going to have some limited --
7 MR. SCHORPP: Well, we'll give you an
8 opportunity for a closing and your opinion, but if you
9 intend to introduce testimony, now's the time to do it.
10 MR. MATEYA: Okay. The zoning requirements that
11 are in the ordinance, 2001 -- it's specifically section --
12 MR. SCHORPP: Are you giving testimony, or do
13 you have witnesses?
14 MR. MATEYA: I have witnesses as to the noise
15 and the odor, but I believe the legal argument is to be
16 able to be presented. And my apologies, but
17 MR. SCHORPP: I'm not foreclosing your legal
18 arguments. Save it for after the testimony this evening.
19 Do you have testimony to present?
20 MR. MATEYA: Yes, I do. I'd first like to call
21 Mr. Fahnestock.
22 MR. FAHNESTOCK: My name is Max Fahnestock. I
23 live at 23 South Baltimore Avenue, Mount Holly Springs,
24 Pennsylvania, 17065.
25
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DIRECT EXAMINATION
BY MR. MATEYA:
Q. Okay. Mr. Fahnestock, can you tell me where
your property is in relation to the property that is filing
the request this evening?
A. I own three properties to the south of 15 South
Baltimore Avenue separated by an alleyway which is l4-foot
wide.
Q. Okay. And the three properties, what are the
addresses?
A. 17 South Baltimore Avenue, 19 South Baltimore
Avenue and 23 South Baltimore Avenue.
MR. SCHORPP: 17, 19 and 23?
MR. FAHNESTOCK: 17, 19 and 23, yes.
BY MR. MATEYA:
Q. And which of those do you live in?
A. I live in 23 South.
Q. Is 23 South the closest or the farthest from the
property in question?
A. It's the farthest.
Q. Okay. All right. Living where you do -- I want
to set the alley aside for right now. We're going to come
back and speak about the alley. I understand that the,
that there is a fan. Tell me about the fan that seems to
be part of the problem here today.
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A. There's a fan mounted, approximately 6 foot --
MR. GOTTHARD: Excuse me. Can he speak up so I
can hear him, please?
MR. FAHNESTOCK: The fan is mounted
approximately 15 feet above the grade on the south wall of
the building, 15 South Baltimore Avenue.
BY MR. MATEYA:
Q. How many feet high is it?
A. It's 6 feet.
Q. Okay. 6 feet.
A. It extends beyond the wall 36 inches. Its
diameter is approximately 36 to 42 inches. It is what you
call something like a torpedo-type fan where the motor is,
I think, mounted right in the shroud. It was installed
back in December of 2004. It made a tremendous amount of
noise. Today the noise is somewhat dampened, but it's
still very noticeable.
I can sit in my family room watching TV with the
doors and windows closed and I can still hear it. It
operates anywhere from maybe 7 or 8:00 in the morning to
11:00 at night at least sometimes. It emits an odor. It
emits a lot of grease. If you look at that fan in five
months' time, it is packed with grease. The inside is
starting to drip off the belt. I have a garden located on
the property of 17 South Baltimore Avenue right next to the
12
1 alley, and this fan, what grease is not caught is probably
2 going into my garden.
3 The odor is, it dissipates throughout the
4 properties, my properties. My other tenant that's not here
5 tonight that lives at 19 South Baltimore Avenue has
6 complained about the noise and the odor. He's an early
7 riser. He gets up about 5:00 in the morning; he goes to
8 bed earlier, so he's disturbed about it. He's not here to
9 testify, but he has told me this.
10 I don't think the fan should be there because
11 it's beyond the property line of the 15 South building.
12 The property line and the building line and the lot line
13 are all one in the same for the building at 15 South. I
14 think there is a section in the zoning ordinance -- I don't
15 know exactly the number, but the paragraph states that
16 nothing shall be vented beyond the lot line to the
17 adjoining property owners, and I feel this fan does that to
18 me.
19 Q. Tell me about the -- you said about the noise,
20 about the grease. Is there any odor that's attached to it
21 as well?
22 A. It is. It dissipates throughout the properties.
23 It's stronger in some areas. The other day when Mr. Deluca
24 was with me, we walked between the property of 17 and 19
25 South, and it was very pronounced. It was very strong
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right between those two buildings.
Q. Now, where you live, how far are you from the
Mount Holly Inn?
A. Well, I am farther from their building than I
am -- maybe not. This is a judgment call on my part.
Q. That's fine.
A. It may be equal distance.
Q. Give me a ballpark in yards. How far are we --
A. Yards?
Q. 30 yards, 20 --
A. 30, 35 yards.
MR. SCHORPP: Now, that was to where, 30, 35
yards to where?
BY MR. MATEYA:
Q. To the Mount Holly Inn?
A. Yeah. They're about equal distance.
Q. And I'm asking about the Mount Holly Inn. When
you've lived there I know the Mount Holly Inn has closed
for a while. Did you ever live there when Mount Holly Inn
was open and the grill and the food was moving and it was
going and it was operative?
A. Oh, yes.
Q. Did you have the same problem with sound or the
smell from the Mount Holly Inn?
A. I've never, to my knowledge or recollection,
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have smelled odors from their fence.
Q. Okay. How about the sound?
A. The sounds I don't hear at all. I've never
heard the sounds from them.
Q. Does the Mount Holly Inn have vents -- I'm going
to call them vents for the lack of a better word. Does it
have a vent similar to what is on this property at l5?
A. Similar in appearance --
Q. Okay.
A. -- maybe not in size, but they have three of
them.
Q. And where are they located?
A. They are located vertically about the middle of
the building, and they project upward.
Q. They're on the roof?
A. They're on the roof, and they're on their own
property.
Q. Okay. All right. So you didn't have that
problem?
A. I never had that problem with the Holly Inn, no.
Q. Okay. All right. I have four pictures here I
want to show you. Could you take a look at these one by
one, and then after you've looked at all four of them, tell
me, are these good representations of the fan that's in
question?
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MR. SCHORPP: Are you intending to introduce
2 those as exhibits?
3
MR. MATEYA: Yes, I am.
4
MR. SCHORPP: How many are there?
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MR. MATEYA: Four.
6
MR. SCHORPP: We'll mark them Appellant's
Exhibits 1, 2, 3, 4.
MR. MATEYA: May I mark them on the back? Is
that okay?
MR. SCHORPP: Yes.
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MR. FAHNESTOCK: They're very representative. I
12 took these myself, and they were probably taken within --
13 BY MR. MATEYA:
14
Q.
Take a look on the back of this. Is that the
15 date? And I'm not sure. It says April 11th there. Is
16 that right?
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A.
That's probably correct.
Q.
Okay.
A.
That's probably correct.
Q.
Looking at the amount of green on the bushes,
21 that looked about right. All right.
22 If you would just give me a moment to mark
23 these.
24 (Appellant's Exhibits Nos. 1, 2, 3 and 4 were
marked. )
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1 MR. MATEYA: And, Mr. Schorpp, with your
2 permission, I'd like to hand these to you to hand around.
3 MS. THOMPSON: I think we have a similar set
4 right up here that Mr. Fahnestock included with a letter.
5 MR. MATEYA: I'm not sure these are the same.
6 They mayor may not be. And my apologies, because of the
7 pinch hitting, I'm not exactly sure what you have.
8 BY MR. MATEYA:
9 Q. All right. I would like to talk a little bit
10 about the
11 MR. SCHORPP: Well, now wait a minute. I don't
12 want the board viewing photographs unless they're the same
13 because they were submitted ex parte, so let's --
14 MR. MATEYA: Oh, you mean the ones that were
15 there before?
16 MR. SCHORPP: Yes.
17 MR. MATEYA: All right. Again, my apologies. I
18 was not aware of what was there and what was not. I'll
19 take them.
20 MR. SCHORPP: Let the record show, I'm giving
21 the photographs that Mr. Fahnestock sent to the board back
22 to them.
23 MR. MATEYA: And if it's all right with you, I'd
24 like to give a moment for them to look at those.
25 (Off the record.)
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BY MR. MATEYA:
Q. Okay. Then I'd like to continue. About the
alleyway -- you've talked about where they were at and
we've looked at the photos -- does it seem to you that
these fans might be a problem with somebody driving down
that alleyway?
A. They could depending on the size of the vehicle,
weather conditions, things of that sort.
Q. What is that alleyway used for?
A. It's used for ingress and egress for my
properties. They're open to the public. They're not as
commonly used today as they once were. Fishermen used to
use them; local people used to use them. When there was a
hardware store in there, deliveries were made by that
alley. Customers used them for the hardware store and so
forth.
MS. THOMPSON: That alley is not your property,
correct?
MR. FAHNESTOCK:
MS. THOMPSON:
MR. FAHNESTOCK:
Pardon me?
That alley is not your property?
No. That alley came about back
in the 1800's. Those properties were owned by Sam Gibbons
(phonetic), and when the properties were deeded out and
laid out -- I'm summizing some of this. I've been in the
courthouse trying to search for records.
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MR. SCHORPP: Well, let's not testify to things
you don't know to be facts.
MR. FAHNESTOCK: Well, I've lived there 75 years
of my life, 74 years.
MR. SCHORPP: I'm just asking for facts. That's
all.
MR. FAHNESTOCK: Well, I'm giving you the facts
because some of the old neighbors said things about that
alley. Okay? And I have researched the deed of that 15
South, and when Sam Gibbons conveyed that property --
MR. SCHORPP: Well, let's cut to the chase.
Board Member Thompson asked you if the alley was your
alley, and
MR. FAHNESTOCK: It is not.
MR. SCHORPP: your simple answer is it is
not?
MR. FAHNESTOCK: No.
MR. SCHORPP: And to your understanding, it is
public. Is that your testimony?
MR. FAHNESTOCK: That's my --
MR. SCHORPP: Okay.
MR. FAHNESTOCK: Right. Can I add one more
thing on that?
BY MR. MATEYA:
Q. Actually, well, I can ask the questions to help
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wrap this up.
A. Okay.
Q. The property in question at 15 South Baltimore
Street -- and I don't know if I need to enter this as an
exhibit. This is a chain of title, and I had not, to be
honest, I hadn't plan to do so. I have -- and I'll be glad
to let the board look at this.
And if I need to make a copy of this, I'll be
happy to, Mr. Schorpp. I have a title for 15 South, and
the chain of title that is dated September
MR. SCHORPP: We're not going to -- an abstract
of title is somebody's work and somebody's opinion who's
not here to testify, so I think we're not going to get into
that. We have Mr. Fahnestock's testimony that, to his
knowledge, it is a public alley. He has also said that,
even if it's not a public alley, it's used as a public
alley.
MR. MATEYA: Okay.
MR. SCHORPP: For our purposes, I think that's
sufficient.
MR. MATEYA: I hate to do this, but if I can do
a very quick offer of proof.
MR. SCHORPP: Well, the official test of whether
or not it's a public alley is whether it's on a borough
road or not.
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MR. MATEYA: That's not the issue. That's not
where we were going on that, whether it's public.
MR. SCHORPP: All right.
BY MR. MATEYA:
Q. Okay. Are you aware of any restrictions on the
deed of 15 South?
A. Yes.
Q. Okay. Is this a proper representation of what
your recollection is of that?
A. Right. These are copies of the deeds from the
courthouse.
Q. Could you just read this underlined section?
A. Well, it's written in old, handwritten, as a lot
of deeds were back then.
Q. If it isn't easy to read, I'd be happy to pass
it around to the board.
A. It says that the said second party (inaudible)
may and have the right to use the beforementioned alley for
ingress, egress and regress -- I guess that is along the
same -- but shall not encumber overhang or obstruct the
same.
Q. To the best of your knowledge of the research
that was done, this is a deed to 15 South Baltimore?
A.
Correct.
Thank you. That's all the further I'm going to
Q.
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go with that. Okay. And the testimony that was given
earlier was that this fan was put in sometime around
December, January or February, to the best --
A. It was in the month of December, and to my
recollection, it went into operation on January 27th, 2005
because I made notes of these things.
Q. Okay.
A. I documented them.
Q. Now, are you familiar with the ordinances, in
particular, I'm looking at an amendment from 2001, village
district ordinance?
A. Yes.
Q. Do you have background with the zoning and
ordinances here in Mount Holly?
MR. SCHORPP: Now, the ordinance is for the
board to interpret.
MR. MATEYA: Right. Let me ask you, I simply
was going to talk about a few specific issues, a few
specific sections. Would you prefer I do that in my
closing?
MR. SCHORPP: You can make argument in your
closing, but the ultimate test is the ordinance is for the
board to interpret.
MR. MATEYA: Right.
MR. SCHORPP: So you may certainly mention it in
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your argument.
MR. MATEYA: But because I need to get it into
the record, I was going to ask him of his knowledge of
section 502 B2.
MR. SCHORPP: It's probably easier just to have
him --
MR. MATEYA: I'm sorry?
MR. SCHORPP: I said it's probably easier just
to have the answers of what's in.
BY MR. MATEYA:
Q. I promise not to take long. You said you're
familiar with these sections? Village district B2 as it
was amended in 2001, to your knowledge, does this apply to
the area where you live and this 15 South Baltimore?
A. Yes, it does.
Q. Okay. And subsection 502 B, could you just read
that and then read number 2, please?
A. It says the following uses may be permitted as a
special exception only authorized by the zoning hearing
board subject to Article 9 herein.
Q. Just read number 2 then.
A. And number 2 is listed as a special exception,
restaurants and taverns without drive-through facilities.
Q. To your knowledge, was there ever a special
exception until today?
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A. No.
Q. Okay. Is the restaurant open today?
A. Yes.
Q. Okay. To the best of your knowledge, the
property at 15 South Baltimore and the building -- I'm
sorry -- the building. Does the building cover what
percentage of the property to the best of your knowledge?
A. The original property landwise is probably 95 to
100 percent covered by the building area, the original
deed.
Q. Okay. I'm in the same section -- pardon me.
I'm in the same ordinance. I'm now at section 504 B; 1,
residential uses; subsection 2, nonresidential -- I'm
sorry -- subsection 2, nonresidential uses, C. Could you
read what that says there?
A. It says nonresidential uses under paragraph 2C,
impervious coverage shall not exceed 80 percent.
MR. SCHORPP: But the building, you testify that
this application is based on impervious coverage?
MR. MATEYA: I'm sorry. I didn't understand.
MR. SCHORPP: I said what's there is there.
MR. MATEYA: Right. I believe it covers about
95 percent of the property.
MR. SCHORPP: Well, but what's there is there.
Are you trying to show that this application is increasing
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the impervious coverage?
MR. MATEYA: Well
MR. SCHORPP: Because, otherwise, this has no
bearing on this case.
MR. MATEYA: I'll leave that.
MR. SCHORPP: Okay.
BY MR. MATEYA:
Q. You testified that, to this point, the special
exception, there was no request for a special exception
hearing until tonight?
A. That's correct.
Q. Okay. All right. Are you aware of any building
permits that were requested on this property?
A. No, I don't know of any building permits.
Q. Okay. All right. I don't believe I have any
other questions. Now, you live there, and I tried to ask
you some specific things about the odor and the noise.
These are your neighbors that are here. Is there anything
more that I didn't specifically ask you about that you want
them to know as they're considering this request for a
special exception?
A. Well, the thing that bothers me, I have three
properties there that's been there for 100 years or so.
Sooner or later, I'm going to have to probably transfer it
over to some new owner, so I feel that anything that's done
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to that alley can impede the next owner from using that
alley in a sensible way, or being treated with odors and
noise and so forth is going to be a detriment to my
conveying that property. And I don't think that's fair to
me, for my adjoining neighbor to put a hardship on me, on
my properties for the benefit of himself; and I feel that
that's what's happening here.
MR. MOTTER: Okay. Anything else?
MR. MATEYA: I have no other questions.
MR. GOTTHARD: Can I ask a question of him?
MR. SCHORPP: Sure.
CROSS-EXAMINATION
BY MR. GOTTHARD:
Q. When the pizza shop first went in 13, 14 years
ago, did you have odor and smell and grease problems then
for the last 14 years that there was a restaurant, and I
believe every restaurant has eight exhausts to their
business? Did you ever have that problem then with a pizza
shop?
A. To say that I didn't, I didn't. I don't really
recollect, but
Q. You don't have a memory of that for 14 years?
A. Well, you asked me a question, and I'm going to
answer it, so leave me alone. There was a grease problem.
The door that consumed the alley, they used to sit grease
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cans out there. They used to sit old food out there. They
had a 52-gallon drum at the rear of the --
Q. That's not the question I asked you.
A. You asked me about grease.
Q. I asked you if you had -- no, I didn't ask those
questions. I asked, what you're saying about this place,
did you have odor and smell and whatever you call it of the
grease then in the last 14 years that you can recall?
A. Well, let's go back a little bit. I don't think
the fan --
MR. SCHORPP: Well, the answer to the question
is yes or no, and then you can explain your answer.
MR. FAHNESTOCK: I will say yes.
MR. SCHORPP: All right. So your answer is you
do have a recollection of --
MR. FAHNESTOCK: Right.
MR. SCHORPP: either an odor or grease
problems from the fan. Is that correct?
MR. FAHNESTOCK: And it was probably to a much
lesser degree. The grease problem is what I explained.
There was a 52-gallon drum out there where they threw their
grease into. It was unattended. It was never cleaned up.
MR. GOTTHARD: That is not true.
MR. SCHORPP: Well, you can't testify right now,
but you can ask questions.
27
1 MR. FAHNESTOCK: And like I say, they did sit
2 things outside the door at the side of the alley with, I
3 guess, oil or food or whatever. I can also state this:
4 The pizza shop was in violation also. It did not have a
5 grease trap in it at that time. I had a problem with
6 backing up of sewage of my three properties, and I went to
7 the -- in fact, I call --
8 MR. SCHORPP: Well, let's stick to the
9 questions. Well, the question is, did you have odor from
10 the fan for the pizza restaurant?
11 MR. FAHNESTOCK: Well, they did not have a
12 grease trap.
13 MR. MATEYA: Did they have a fan?
14 MR. FAHNESTOCK: They had a fan that hugged the
15 wall. I think it was a makeshift thing, and it did vent to
16 the vertical part, not to horizontal. It very seldom
17 operated. And I can say something else about it, if I may
18 go on. One of the pizza people were going to operate with
19 gas they got off of Carlisle Propane.
20 They set a big tank out in the middle of that
21 alley, up close to the alley. That stuck out about 4 or 5
22 feet. I wrote a letter about that. Two weeks later, it
23 was out of there, and I copied Mr. Gotthard on that letter.
24 So the other restaurants weren't that clean either, in my
25 opinion.
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MR. GOTTHARD: I would like to state one thing
for the record.
MR. SCHORPP: Don't state anything. Do you have
any other questions of this witness?
MR. GOTTHARD: Questions, no, but I would like
to state something on the record.
MR. SCHORPP: You'll have a chance to testify at
the end of this.
Any other questions from the board?
Next witness.
MR. MATEYA:
MR. SCHORPP:
Thank you very much.
I'm just trying to keep things
focused.
MR. MATEYA: I'd like to call Pam Still.
DIRECT EXAMINATION
BY MR. MATEYA:
Q. And, Ms. Still, for the record, state your name
and address, please.
A. My name is Pamela Still, and I'm at 18 South
Baltimore Avenue, the stone house, and I'm the owner.
MR. SCHORPP: How do you spell your name?
MS. STILL: S-t-i-l-l.
BY MR. MATEYA:
Q. Ms. still, thank you for coming this evening.
You said you live at 18 South Baltimore. Where is that in
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relation to 15 South Baltimore that's in question tonight?
A. My property is across the street and south of
19 -- 17, so I'm directly across the street, but south.
Q. Okay. The three properties that you've heard
testimony about, they're on the same side of the street, is
that correct, as 15
A. Correct.
Q. But you're on the other side of Baltimore
Street?
A. Yes.
Q. Now, tell me if I'm wrong. That puts you a
little bit further away from this building?
A. Correct.
Q. Okay. All right. I'd like you to tell me, do
you have a problem with either the noise or the odor of
this fan?
A. Well, quite honestly, the only thing that I can
say is that I smell the odor occasionally, and I have
walked through the alley and I've smelled the grease, the
exhaust; and then I've heard the fan, but only when I was
in the alley. At my property, only occasionally have I
smelled anything; and that is partly because I'm across the
street, and maybe it's the way the wind is blowing or
whatever. It's not all the time.
Q. Okay. And how long have you lived there?
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A. I have owned the property about, since 1985, I
think, but I've lived there eight years.
Q. Okay. All right. Eight years you've lived
there, and you've heard testimony that the restaurant's
been open -- pardon -- the fan's been installed since
around a year?
A. Right.
Q. Prior to that when there was a pizza shop there,
how often did you have odor from the pizza shop?
A. I never recall any odor from that.
Q. Would you say this is a real difference from
what you had before?
A. Oh, yeah. If I've never smelled anything before
and have occasionally, but that's really all I can comment
on.
Q. Okay. You said you smelled it occasionally. Is
it a problem? Is it just a nuisance? This is what the
board needs to hear and in your own words.
A. Yeah. I'd say it's a nuisance. I spend a lot
of time outside working in the yard, so anytime you smell a
foul odor, it's not pleasant.
Q. A foul odor, is that what you call it?
A. Well, grease isn't real -- it does smell like
grease.
Q. Okay. All right. Is there anything else that
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you'd like the board to know about concerning this?
A. No.
Q. Okay. That's fine. If you could stay to see if
there are any other questions.
BY MR. SLYDER:
Q. I have a question about the air or the smell in
the air. Is there a prevailing wind pattern that creates
your awareness of it on your property?
A. Well, like I said, it's only occasionally that I
have ever noticed it when I'm in my property, so possibly
it must be, you know, a wind because it's not persistent.
Q. Are there any other restaurants in the area that
are equally proximate to your property?
A. Well, the Holly Inn is further south, yes.
Q. And what about the US Hotel when it was in
operation, or actually I think it was T. Jimmy's Saloon?
A. Yeah, and, you know, I mean it was in operation
while I had been living in one of the apartments in my
property, but I honestly don't remember. I just don't
remember. I was probably too busy in there tearing down
walls and everything.
Q. Well, the reason I asked that is that one
property, the Holly Inn, lies to the south of you.
A. Right.
Q. And the other property, the T. Jimmy's Saloon,
32
1 lies to the north of you?
2 A. Right. I'm wedged in between.
3 Q. SO whatever prevailing wind might exist would
4 blow the residue from one or the other across your
5 property, north and south. I mean, given the Holly gap,
6 winds do blow north and south.
7 A. Right.
8 Q. SO with the proximity of those places and the
9 nature of the terrain, you are subject to either upwind or
10 downwind presence of those other restaurants?
11 A. Well, I'm actually closer to this place though,
12 and maybe it had dissipated because the Holly Inn is quite
13 a distance and T. Jimmy's is the other way. I'm not
14 parallel to it. I'm more catty-cornered.
15 In proximity, this property is actually closer,
16 and truly I'm just here to say that I have occasionally
17 smelled it. It's not all the time. It's not affecting the
18 activity at my house at all, but there is an odor. I can
19 tell you that. From the Holly Inn and the other places, I
20 don't recall at all.
21 MR. MATEYA: Mr. Schorpp, if I could, just to
22 clarify, ask her one question.
23 The distance between, Ms. Still, your house and
24 the Holly Inn versus your house and this fan that we're
25 talking about, are they similar?
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MS. STILL: No. I'm much closer to the Chinese
restaurant.
MR. MATEYA: Okay. That's fine. I have no
further questions.
MR. SCHORPP: Any other questions for this
witness?
Okay. Thank you, ma'am.
MR. MATEYA: Okay. I would like to call Becky
O'Donnell.
DIRECT EXAMINATION
BY MR. MATEYA:
Q. Okay. Ms. O'Donnell, if you could, state your
name, spell your name for the court reporter and your
address.
A. Rebecca O'Donnell, and my address is 17 South
Baltimore Avenue, Mount Holly Springs, PA, 17065.
Q. Okay. And, Ms. O'Donnell, with an address of 17
South Baltimore, you must be directly next to the building
in question?
A. Yes, sir.
Q. Do you have to use that alleyway?
A. Yes.
Q. And you've heard the testimony that the fan was
put on somewhere around the end of last year, beginning of
this year?
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A. Right.
Q. Okay. Can you give us your, since you use this
every day, can you give us your opinion if that fan is a
hazard, a potential hazard, no hazard at all, whatever you
think?
A. Okay. Honestly, I've been out in my yard. I
have two kids, so I'm out there with them. There is an
odor that comes from the fan, and as far as if it's a
hazard, I haven't actually been close enough to it. I
haven't actually checked that out, but the odor seems to be
the biggest -- it's not an attractive smell.
Q. Okay. Is it strong; is it constant; is it
certain times of the day? You heard us talking about wind
patterns. Is it right after the rain? Tell us about it.
A. I would say it's pretty much every day. There's
times when I can smell it inside my home, but definitely if
I'm outside on and off throughout the day. The fan does
come on and off periodically throughout the day.
Q. Okay. All right. How about when you are inside
the house as far as the smell and the sound? Do you still
smell and hear it?
A. Occasionally, yes, and I hear it too. That's
another issue. If I'm sitting outside, I can hear it.
It's not something that is not tolerable, but, yes, I do
hear it.
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Q. And I'll ask you the same question I asked Ms.
Still. Is it a nuisance; is it beyond just an annoyance;
is it something that affects your everyday life?
A. I wouldn't say it affects my everyday life, but
I would say it is slightly a nuisance to be out in your
yard and hear that fan, but that's it.
Q. And is the smell constant?
A. Pretty much, yes.
Q. Okay. All right. How about, let's go to as
you're using that alleyway driving in and out. Is there
also -- we talked about the fan. Am I right there's also
an air conditioner there?
A. I think so, yes.
MR. MATEYA: Okay. If the board would take a
look at the photos, there's an air conditioning unit. It's
not directly below the fan, but it's very close in
proximity to it. It's also in the alleyway.
BY MR. MATEYA:
Q. And you've seen that as well?
A. Yes.
Q. Okay. Do you consider that a potential hazard
with the driving?
A. I, myself, have a very small vehicle. I have
not had an issue with it, but if there's somebody coming
through with a large vehicle, I could see where it could be
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a problem.
Q. Okay. All right. When you -- did you live
there when there was a pizza store there?
A. No, sir, no.
Q. You didn't? Okay. That's fine. I won't go
through that with you. I don't think I have any other
specific questions for you concerning this. Is there
anything that you'd like to tell the board about this
issue? You've heard all the testimony.
A. No, I don't believe I have anything else to say.
MR. MATEYA:
MR. SCHORPP:
MR. SLYDER:
Thank you.
Anybody else?
I think I understood you to say
that your awareness of the fan noise and the odor was
noticeable but not intolerable?
MS. O'DONNELL: It's a food smell. I smell
grease. I can still go on with my everyday life. I mean,
it's not an attractive smell. When I'm out in my yard,
it's not something that smells like fresh-cut grass or
anything like that. It's just not a great smell.
MR. SCHORPP: I think his question was to the
sound coming from it.
MR. SLYDER: Both the sound and the odor. I
think you stated that they weren't intolerable, but you
were aware of them?
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MS. O'DONNELL: Yes. There are times where it
can be annoying at times. Sometimes when I'm out hanging
up my -- I hang clothes on my clothes line, and I come back
out to take the clothes off the line and they kind of smell
like Chinese food. That's an example, but I have a dryer
too.
MR. SLYDER: It goes a little bit beyond just
awareness.
MR. MATEYA: Does anybody else have any other
questions?
MR. GOTTHARD: I have a question of the lady.
CROSS-EXAMINATION
BY MR. GOTTHARD:
Q. When you said you drove down the alley and you
said it was not a problem for you because of the size of
your car
A. Right.
Q. -- besides the fan that's there, and I believe
it's a compressor or something -- it's not an air
conditioner back there -- did you notice, close to
Baltimore Street, a step, a concrete step there?
A. Are you talking about where I live?
Q. Well, in the alley attached to my building
closer to Baltimore. I know you have been there a short
time, but when you drive it, do you know that there is a
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30-some inch step?
A. It comes down?
Q. Yes.
A. Yes, sir.
Q. Okay. That's been there since that building was
built probably 70, 80 years ago.
MR. MATEYA: I'm going to object only because
we're getting testimony, not a question.
MR. GOTTHARD: I just wondered if you were
aware. You are aware?
MS. O'DONNELL: I do know it's there, yes.
MR. GOTTHARD: Thank you. That's the only
question I have.
MR. SCHORPP: Any other questions?
Okay. Thank you.
MR. MATEYA: I would like to call Shannon
Schmitt.
DIRECT EXAMINATION
BY MR. MATEYA:
Q. If you could, Ms. Schmitt, state your name and
your address and spell your last name for the court
reporter.
A. Shannon Schmitt, S-c-h-m-i-t-t, and it's 23
North Baltimore Avenue.
Q. Ms. Schmitt, I'm curious. You live on North
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Baltimore Avenue, not on South Baltimore with everybody
else. What is your experience hearing the fans, smelling
the odor? Can you tell us about that?
A. I'll give the long and short of it. I go down
to Max and Doris's house just about every day. They help
me. My husband's deployed, so they help me with the kids.
And I went to high school with Becky, so I've been with
her. And our kids play together, so the kids are always
out in the backyard playing. So I just kind of sit out in
the backya~d there.
Q. Okay. You said -- now, when you say the
backyard, which one of those? We have three different
properties here. Which one of those three properties?
Would that be 23, Max and Doris's property?
A. Nine times out of ten, I'm sitting there, and
there's occasion I've been at Becky's house at 17 sitting
over there talking with her or back over on 23.
Q. And is this since this fan in question's been
installed?
A. Yes.
Q. Okay. Had you ever been in those backyards
prior to the fan?
A. Yes.
Q. Can you tell me the difference between when you
were in the backyard when there was no fan and what it's
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like now?
A. There is definitely a smell issue and a noise
issue. I mean, my kids have been out there playing, and
they've commented on the smell. You know, they kind of
laugh about it, but they're kids.
Q. Okay. Have you ever had the same smell from the
Holly Inn? Have you ever smelled anything from there --
A. No.
Q. -- to your knowledge?
A. No.
Q. How about the sound?
A. The sound, it sounds like a (inaudible). I
mean, you know, you just hear that constant hum when it's
on. It's just very
Q. All right. It's very what?
A. I mean, it's noticeable. You can hear it just
kind of driving around.
Q. Can you hear it from 23 or from 17 or from both?
A. I can hear it from all three properties.
Q. Okay. All right. Okay. You said your kids
play out there, and what have they said to you about it?
A. Oh, they've just noticed the smell and, you
know, make comments about Chinese food, and then they get
hungry for that. But, you know, and then when I go back to
my house, you can, you have a residual smell.
I mean, it's
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just
Q. Can you explain what you mean?
A. Yeah, like on your clothes, like when you go
into a smoky bar and you get the smoky bar smell to it.
Q. SO you're saying just from being there?
A. Yeah. I mean, we're there for a couple hours.
Q. SO then after you've been there for just a few
hours, you come back and still have the smell of the --
A. Yeah. It's not strong, but you --
Q. You can smell it on your clothes?
A. Yeah, you can smell it.
Q. Okay. All right. I don't believe I have any
other questions for you. Is there anything, again, because
we're in front of your neighbors here, is there anything
that you want the board to know about that I haven't asked
you about already?
A. No.
MR. MATEYA: Okay.
MS. THOMPSON: I'd like to clarify. At your
residence, do you hear anything, or do you smell anything?
MS. SCHMITT: Not down there.
MR. MATEYA: On 23 North Baltimore?
MS. SCHMITT: It's between the Holly Pharmacy
and what used to be Nelson's Barber Shop (phonetic). It's
the only one in between here.
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MR. SCHORPP: For the record, could you say how
many yards or --
I'm not good at that.
Less than a football field, longer
MS. SCHMITT:
MR. SCHORPP:
than a football field?
MS. SCHMITT: I'd say less than a football
field.
MR. MOTTER: Okay. Any more questions from the
board?
MR. GOTTHARD: I have a question.
CROSS-EXAMINATION
BY MR. GOTTHARD:
Q. You visited there with your children before the
fan, correct?
A. Yes.
Q. Did you visit there when the pizza shop was
there?
A. Yes.
Q. Okay. I know a lot of times the pizza shop
always left the back door open, especially in the summer
because of the heat with the ovens and all that.
children ever comment that, um, that smells good?
smell the pizza there? Did they smell that too?
Did your
Did they
A.
Q.
They could smell the pizza, but not as
It's a strong odor also.
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A. When they were playing over towards Becky's
house, not towards Max and Doris's.
Q. They could smell the pizza place also?
A. When they were at 17, on 17's property, not 23,
like that end.
Q. But you could smell the pizza smell back then?
A. Yes.
MR. GOTTHARD: Okay. Thank you.
MR. MATEYA: Okay. Thank you very much. I
would like to call Vicki Fahnestock.
DIRECT EXAMINATION
BY MR. MATEYA:
Q. If you could, state your name and your address
and spell your last name for the court reporter, please.
A. Vicki Fahnestock, F-a-h-n-e-s-t-o-c-k. I live
at 23 South Baltimore Avenue.
MR. SCHORPP: How do you spell Vicki?
MS. FAHNESTOCK: V-i-c-k-i.
BY MR. MATEYA:
Q. And, Vicki, you're clearly familiar with what's
happening here, but what's your relationship to Max and
Doris Fahnestock?
A. They're my parents.
Q.
A.
Okay. And you live at home?
Yes.
44
1 Q. Okay. Can you tell me, at 23 South Baltimore
2 where you live, can you tell me about the odor and the
3 sound that you hear?
4 A. When the Chinese restaurant first opened up, I
5 would go upstairs into my bedroom, which is on the
6 northeast corner of the house, so it was the corner of the
7 house closest to the fan; and it was in the middle of the
8 winter, so all my windows were closed. And I'd go up
9 there, and it sounded like there was a motor running or
10 something.
11 I thought it was something turned on, and here
12 it was this fan running. Back then, it would run pretty
13 much all the time they were open. It runs intermittently
14 now. As far as the smell, I don't smell that inside so
15 much; but anytime the fan is run, there's a strong odor
16 outside, and it's through all the properties.
17 MR. SCHORPP: You said there was a strong odor
18 outside but not inside?
19 MS. FAHNESTOCK: Not so much inside; not as
20 often, but sometimes it is inside also.
21 BY MR. MATEYA:
22 Q. You heard your friend testify that if you're
23 back there for several hours, it sort of gets on your
24 clothes. Would you agree with that characterization?
25 A. Somewhat I've noticed that, but not as much as
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she has, I don't think.
Q. Okay. All right. And the alleyway, do you have
to use that as well to get back and forth?
A. Yes.
Q. And you've seen the air conditioning, compressor
or unit, whatever kind of machine it is?
A. Yes.
Q. And the fan, do you see that as a hazard for
driving in inclement weather?
A. Yeah. In inclement weather, yes, it would be.
Q. Why is that?
A. Well, if the alley's icy, you might slide into
the, whatever the compressor is.
Q. Okay. All right. And did you live there before
when there was an operational pizza shop?
A. Yes.
Q. Did you have the same type of a problem where
you smelled pizza?
A. Every once in a while when they were making
garlic bread, and that was about it.
Q. Okay.
A. And not as much as this now because anytime that
fan is running, you smell it.
24 Q. Is it fair to say that every time the fan is
25 running, you smell something?
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A. Yes.
Q. And maybe it's stronger some times than others?
A. Yes.
Q. You've heard us talk before about living next to
the Holly Inn. You grew up there?
A. Yes.
Q. SO you were there when the Holly Inn was
operating?
A. Yes.
Q. Did you ever have a similar problem with the
Holly Inn?
A. No.
Q. Okay.
A. Under either of the owners.
Q. Okay. Have you seen the fans that they have on
the roof?
A. Yes.
Q. Are they similar to what you've seen here?
A. They're sort of the same kind, only they go up
off the roof instead of projecting out towards us.
Q. To your knowledge, does the Holly Inn have
anything projecting out the sides?
A. Not as far as a fan, no.
Q. Okay. I don't believe I have any other specific
questions for you. Again, repeating what you've heard me
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say before -- these are your neighbors -- is there anything
you'd like them to know about in deciding this request for
a special exception?
A. Can't think of anything else.
MR. MATEYA: Okay. Anything from the board?
MR. SHIREY: Vicki, you commented on the Holly
Inn, that in the past, you never had any awareness of an
odor problem from the Holly Inn. Are you aware of any
complaint or have you ever had any personal complaint about
noise from the Holly Inn, or has anyone in your family ever
expressed any concern about noise from the Holly Inn?
MS. FAHNESTOCK: Some traffic noise sometimes.
That's about all I can think of.
MR. MATEYA: Anybody else?
MR. GOTTHARD: I have a question.
CROSS-EXAMINATION
BY MR. GOTTHARD:
Q. Is it Becky?
A. Vicki.
Q. Vicki, I apologize. Vicki, I know you can't use
the other alley now. You have, once they complete that
bridge, you have another egress out, and that's --
A. We have an ingress, but not an egress because we
can't see to go out that way. It's not safe.
Q. Say that again.
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A. We can't go out that way because there are cars
parked there, and we can't see out to the left and
Q. You can when they're through with the
construction.
A. ~.
Q. I see him and people going in and out of there a
lot more than that alley.
A. Not out through the creek. We come in through
the creek and then go out the other way.
Q. But you do have another way to get out, right?
A. If we want to play roulette when we go out
there.
Q. You play roulette with Pine Street? Is that
what you mean?
A. Yeah.
Q. That might change with the reconstruction of
the
A. I don't know.
Q. Right. Who's to say? Well, hopefully. Thank
you.
BY MR. SLYDER:
Q. Vicki, are you suggesting that your egress to
Pine Street is obstructed by anything having to do with the
Gotthard property?
A. There's cars there sometimes. There's that
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building that goes out.
Q. Does that building proceed to a point any less
than 10 feet from the right-of-way?
A. I don't know. I don't know where the
right-of-way is.
Q. If there are obstacles on Mr. Gotthard's
property that are vehicles, are those issues to you?
A. If we try to go out that way --
Q. If you try to leave through the alleyway
northbound to Pine street --
A. Right.
Q. your left --
A. We cannot see very well.
Q. visual area is obstructed by vehicles that
would be parked immediately there on the Gotthard property?
A. Yes, at times.
MR. MATEYA: Mr. Schorpp, could I have two
minutes with my client before we finish up?
MR. SCHORPP: Sure.
(Whereupon, a brief recess was taken.)
MR. MOTTER: Do you have any other witnesses?
MR. MATEYA: I don't have any other witnesses.
I would like to make a brief final statement, if I could.
MR. SCHORPP: We're not there just yet.
MR. MATEYA: Oh, all right.
50
1 MR. MOTTER: One of our board members has a
2 question for Mr. Fahnestock. Can we recall Max?
3 MR. SCHORPP: You can ask him from there as long
4 as everybody can hear him.
5 MR. MOTTER: Max, have you historically ever had
6 any complaint about the Holly Inn either from noise, visual
7 concerns or odor concerns?
8 MR. FAHNESTOCK: Let's talk about odor. Under
9 the former ownership, I had a complaint about odor because
10 of their dumpster. The dumpster used to be parked right
11 next to my property at the rear of my out buildings.
12 That's the only odor I ever experienced from the Holly Inn,
13 nothing from the fans or the building. That dumpster,
14 under the new ownership, has been moved up behind the
15 building away from my property. I no longer have that, and
16 it's according to code.
17 It has a fence around it, it's gated and I know
18 it's empty quite often. Noise, the only time we ever had
19 any noise, sometimes they had parties at the banquet hall,
20 not often, but occasionally. The parking lot fills up.
21 You get some cowboys out there. Some of the auto show
22 people come over there, and I did call the State Police one
23 time because a guy was doing wheelies out there one time,
24 and I got no response.
25 Our police I don't think was on duty, but there
51
1 are occasions that I get noise out of there. Under the new
2 ownership (inaudible). Under the old ownership a couple
3 years back, it was more, but I never, that I can recall,
4 got noise from the building, itself, other than the banquet
5 hall occasionally. Okay?
6 MR. SLYDER: I'd like to ask another question,
7 and I have to do it, I guess, through Ed to make sure it's
8 an appropriate question. Your presence here tonight is to
9 seek a remedy to a problem or to seek an end to the
10 presence of the business?
11 MR. SCHORPP: That's a fair question.
12 MR. MATEYA: Can I answer that?
13 MR. SLYDER: No, I'd like to hear Max.
14 MR. FAHNESTOCK: Can I consult with him first
15 because we talked about this issue, and I want to answer
16 this properly?
17 MR. SCHORPP: Let me put it in context for
18 everybody. The zoning hearing board has the power, if the
19 case is made, to grant a special exception but impose
20 limitations and restrictions, and I believe that's where
21 his question is headed. And so the question is, if the
22 odor and noise issues go away, does anybody in the room
23 have an objection to a restaurant in this location. Is
24 that your question?
25 MR. SLYDER: Well, yes, with a little
52
1 embellishment. I think if every reasonable -- my question
2 would be, if every reasonable effort was made to mitigate
3 the problem, would that satisfy your concerns or are you
4 objectly petitioning against the presence of the
5 restaurant.
6 MR. FAHNESTOCK: I am not, per se, against the
7 restaurant being there. The restaurant should be in
8 accordance with the zoning ordinance. It should be in
9 accordance with property rights. It should not interfere
10 with the neighborhood. These are the things that are my
11 main concerns.
12 If they would stay on their own property -- they
13 don't have a hardship case, in my opinion, and I've done
14 engineering work for the last 40 years, designed buildings,
15 ventilation systems, etcetera. That fan could be put up
16 through the roof, or it could go on the north side of the
17 building.
18 He owns that parking lot. He owns all that
19 ground next to Pine Street. He would not be interfering
20 with me. Some way with the air conditioning, compressor or
21 whatever it is out there -- he already has two units on the
22 roof. He also has sort of a patio there where his
23 apartment tenants come out and sit at the table. The roof
24 is built strong enough because it holds a lot of water.
25 It's a flat roof.
53
1 MR. SLYDER: Max, the question I asked you was,
2 if we seek every legal remedy to mitigate the problem, will
3 that satisfy your position versus a flat-out request to
4 remove the restaurant?
5 MR. FAHNESTOCK: I said I'm not against the
6 restaurant, but certain conditions have to be met. I mean,
7 the fan's got to go; the air conditioner got to go.
8 Nothing in the future should be put in that alley. It's as
9 simple as that.
10 MR. SLYDER: In your opinion?
11 MR. FAHNESTOCK: In my opinion and in accordance
12 with the law too. I mean, I read you the deed. I don't
13 know what else it takes.
14 MR. SLYDER: I don't have any further questions.
15 MR. FAHNESTOCK: And I'm not an attorney.
16 MR. SCHORPP: Does that answer satisfy the rest
17 of you folks that testified?
18 MR. FAHNESTOCK: I'm surprised the restaurant's
19 even in business today because it never went through this
20 process before.
21 MR. SCHORPP: Well, we understand that. That's
22 why we're here. Do any of you who testified in
23 opposition -- let me ask it another way. Do you agree with
24 what Mr. Fahnestock just responded in terms of issues, or
25 are you against the restaurant all together? Do you agree
54
1 with Mr. Fahnestock is what I hear? You do. Okay. Thank
2 you.
3 MR. FAHNESTOCK: May I add something else? If
4 you're proposing something be done, that they be relocated,
5 they should be relocated in the fashion that they do not be
6 objectionable even after that relocation.
7 MR. GOTTHARD: Could you repeat that? I
8 couldn't hear it.
9 MR. FAHNESTOCK: They should be installed in a
10 sense where they do not object to the neighborhood like
11 they do today.
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18 record?
19 MR. SCHORPP: Yes.
20 MR. GOTTHARD: I would like to state on the
21 record that this man right here has a vendetta against this
22 property, against this store. Why, I do not know, but I
23 will tell you, for 13, 14, 15 years, this man has a
24 vendetta against that property, period. He's one of the
25 most unreasonable neighbors you've ever met, and I have
MR. GOTTHARD: That's your opinion. Okay.
MR. FAHNESTOCK: Well, it's my expression, and
if it doesn't, I will be back somewhere.
MR. SCHORPP: Okay. No other testimony?
MR. MATEYA: Nothing.
MR. GOTTHARD: May I say something for the
55
1 witnesses to that.
2 MR. MATEYA: I'm not going to object. I'm going
3 to bite my tongue for another moment.
4 MR. MOTTER: Okay. Thank you.
5 Any other statements?
6 MR. SCHORPP: Counsel has requested to make a
7 closing.
8 MR. MATEYA: Yes. And I will make it brief
9 because, in fact, by asking Mr. Fahnestock the question you
10 did, I think he stated our position very well. In fact, I
11 think the only thing I would like to review with the board
12 is the fact that we don't know, in light of the fact that
13 there was never a request for an exception to this point,
14 we don't really know if there was a building permit
15 necessary for some of the things that were done or where
16 ACs are placed.
17 In fact, what we are after is to find a
18 remediation that comports with the ordinance, in which
19 we've already read into the record without going back into
20 it; so that if the board decides, well, we're not going to
21 shut them down right now because they're trying to do
22 something, what my client is interested in is getting that
23 alleyway cleared.
24 And I don't believe that it will be overly
25 burdensome to the owners to place an air conditioner on the
56
1 roof or place a fan on the roof. These things have been
2 done in the past. They're done by other business owners.
3 This is not, we're not looking for extraordinary relief.
4 We're looking for them to toe the line, and that is to say
5 stay within the law. And specifically, we don't know what
6 the answer is, and I'm not pretending that I do.
7 We don't know what the answer is concerning the
8 building, a building permit. We do know that presently
9 they're not in line with the ordinance that we all have
10 here in Mount Holly. That's fairly clear. So what we're
11 asking is that they remove those units; if they're going to
12 stay, that they replace them so they don't protrude into
13 the alley.
14 MR. MOTTER: Do you have anything else, Ed?
15 MR. SCHORPP: The board by law is required to
16 conduct a hearing within 60 days of the date of the
17 application, which was May 19, which puts us we've had a
18 hearing. We've started it this evening. And the
19 applicant's not here. If the board were to keep the record
20 open to give the parties an opportunity to see if a
21 resolution could be achieved between them, is that
22 something that you folks would want to pursue?
23 MR. MATEYA: I'd have to ask my client. Can I
24 have a moment?
25 MR. SCHORPP: I'm not saying that we can impose
57
that.
I'm asking if that's a possibility.
MR. MATEYA: Can I have a moment?
(Whereupon, a brief recess was taken.)
1
2
3
4 MR. SCHORPP: Due to the circumstances with
5 which we're confronted this evening, and I'm referring
6 specifically to the fact that Mr. Lin is not present, the
7 board is somewhat handicapped in resolving the application.
8 So what the board is going to do is this: The board is
9 going to schedule a special meeting on Monday, July 18,
10 which is this coming Monday, at 7:30 p.m. to render a
11 decision on this application.
12 However, if Mr. Lin would present a letter to
13 the borough secretary by 12 noon tomorrow indicating that
14 he agrees to have a decision postponed until the board's
15 August meeting, which would be August the 9th, then the
16 board will not meet this coming Monday and we will wait
17 until August the 9th to render a decision in the hopes that
18 that gives the parties an opportunity to see if there's
19 common ground to resolve any outstanding issues without the
20 participation of the board.
21 Mr. Gotthard, can you carry that message back to
22 Mr. Lin? Do you understand what I'm saying?
23 MR. GOTTHARD: You're talking about 12 noon
24 tomorrow?
25 MR. SCHORPP: Yes. All we want from Mr. Lin is
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1 a letter agreeing to have this board postpone its decision
2 until August 9. If he has --
3 MR. GOTTHARD: You know, I will try to reach
4 him. He's not open on Tuesdays, so he's not there for me
5 to go back. I will try to reach him. I go out of town
6 tomorrow at 8 in the morning. He does not open that until
7 11. I will try my best, but that's awful short notice to
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13 have an advertising deadline to get a sunshine law notice
14 in the Sentinel in order to have a meeting on Monday. It
15 has to be in at least 24 hours in advance, and the Sentinel
16 requires lead time in addition to that to get it set up on
17 their legal notices. I mean, we may be able to go until
18 about 2. The problem is we need to know also so we know
19 what we're doing.
20 MR. GOTTHARD: I'm sure he will. It's just I
21 hope he's in town.
22 MR. SCHORPP: Well, I mean, if he's running his
23 business, he will be in town.
24 MR. GOTTHARD: I would think so.
25 MR. SCHORPP: Otherwise, I mean, we'll go ahead
get it by noon.
MR. SCHORPP: Well, I think he needs to
understand the gravity of the situation.
MR. GOTTHARD: I will try my best.
MR. SCHORPP: The problem we have is that we
59
1 and rule tonight. I'm leaving this open. We're prepared
2 to make a decision.
3 MR. GOTTHARD: I will try my best to get a hold
4 of him.
5 MR. SCHORPP: Do your clients have any
6 objections to this procedure?
7 MR. MATEYA: It's not like this meeting was
8 unknown. This was requested by Mr. Lin. I definitely can
9 understand the board trying to be more than fair with him
10 because there's a problem with the language, but if you
11 want to give him until noon tomorrow, I think that's fine
12 because I think what you said to the board then is, look,
13 we bent over backwards and have done everything for you.
14 I'm not trying to put words in your mouth, but it's clear
15 that what you're trying to do is be fair to him.
16 MR. SCHORPP: Well, we're trying to be fair to
17 everyone. I mean, we're going to be objective and
18 impartial on this.
19 MR. MATEYA: Now, if I understand, otherwise,
20 we're going to have a meeting next Monday that will not be
21 to take additional testimony; that will be to render a
22 decision. Is that correct?
23 MR. SCHORPP: No. That would be, the record
24 would remain open through Monday.
25 MR. MATEYA: So you would be willing to take
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1 additional testimony next Monday?
2 MR. MOTTER: This coming Monday, Monday the
3 18th.
4 MR. GOTTHARD: That would require me or him to
5 be here?
6 MR. MOTTER: He needs to be here.
7 At that additional hearing, whether it's in
8 August or in July, there were several issues that we -- we
9 talked about building permits and that clearly (inaudible)
10 MR. SCHORPP: Well, and you need to understand
11 that we're a zoning body, not a construction, uniform
12 construction code body, so we don't do building permits,
13 electrical permits and those types of things.
14 MR. MOTTER: I understand.
15 MR. GOTTHARD: To my knowledge, he got the
16 building permits or all the permits. I know he came down
17 here six, seven times, again, because of the language
18 barrier, and I know that Dennis Russell went and visited
19 him a number of times.
20 I think he might even have helped him, you know,
21 with the application, but I know he came here a lot because
22 I said you have to check with the borough on what you have
23 to do, sign ordinances and stuff.
24 MR. SCHORPP: Well, this board is faced with
25 unique circumstances from the standpoint, number one, this
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1 business has been in operation since January; and from that
2 standpoint, maybe it wasn't addressed properly by the
3 borough, maybe it was.
4 We have an applicant who's not here this
5 evening, and we have expressed complaints about, not so
6 much the use, but the fixtures and the structure in which
7 the use is conducted. Now, unless everyone agrees, this
8 board's going to make a decision now.
9 MR. MATEYA: Well, before I speak or comment,
10 may I speak to my client for a minute?
11 MR. SCHORPP: Sure.
12 (Whereupon, a brief recess was taken.)
13 MR. MATEYA: The way you've presented it, that
14 the board's going to give him until noon tomorrow to come
15 in and present a letter that explains his position and
16 that--
17 MR. SCHORPP: Not explains his position; agrees
18 to have the board defer its position until August the 9th
19 and keep the record open.
20 MR. MATEYA: And then if he doesn't come in by
21 noon, to have the meeting on the 18th of this month where
22 the record still will be open and the board will render a
23 decision?
24 MR. SCHORPP: Correct.
25 MR. MATEYA: We're willing to go with that. My
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1 client is willing to accept that and be patient and see
2 what can be worked out.
3
MR. SCHORPP: All right. Given that, the board
4 is going to keep the record open pending receipt of a
5 letter from the applicant not later than -- noon or
6 2:00 -- not later than 2:00 tomorrow, Wednesday, July 13th,
7 which indicates that he agrees to continue this hearing
8 until the August 9th zoning hearing board meeting. In the
9 event the letter is not received by 2 p.m., Wednesday, July
10 13, this board will reconvene on Monday, July the 18th at
11 7:30 p.m. for further proceedings in this matter.
12
MR. MATEYA: If the letter does not come?
13
MR. SCHORPP: Correct. If the letter comes, you
14 will be notified and, of course, all the board members and
15 I will be notified. Fair enough?
16
MR. MATEYA: Sounds good.
17
MR. SCHORPP: Okay. Thank you very much for
18 your cooperation. We will adjourn for this evening.
19
(Whereupon, the deposition was concluded at
9:30p.m.)
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1 I hereby certify that the proceedings and evidence
2 are contained fully and accurately in the notes taken by me
3 on the within proceedings, and that this copy is a correct
4 transcript of the same.
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/ \vv\ ~,~ \
Jenn~e~ L. -S:\rois, Court P.eporter,
Notary pUbli/
COMMONWEALTH OF PENNSYLVANIA
" ~OT~RI~l SEAL
JENNIFER L SIROIS Notary Public
EastPennSbolO Twp.. Cumbe,\<!IId Coul1'ly
-MIl CommissiOn EXOIres June 2. 2009
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The foregoing certification does not apply to
15 any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying
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1
MOUNT HOLLY SPRINGS
ZONING HEARING BOARD
MOUNT HOLLY SPRINGS, PENNSYLVANIA
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IN RE: Chung H. Lin
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ORIGINAL
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TRANSCRIPT OF PROCEEDINGS
(VOLUME II pgs 63-83)
BEFORE:
DOUGLAS MOTTER, Chairman
JAMES SLYDER, Vice-President
CYNTHIA THOMPSON, Secretary
WILBUR SHIREY, Alternate Member
EDWARD L. SCHORPP, SOLICITOR
DATE:
August 9, 2005, 7:30 p.m.
PLACE:
200 Harmon Street
Mt. Holly Springs, Pennsylvania
APPEARANCES:
BY: MARK A. MATEYA, ESQUIRE
FOR - APPELLANT
Amy R. Fritz, Notary Public
Registered Professional Reporter
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1
2 WITNESSES
3 Chung H. Lin
4 Rita Boyer
5 Dennis Goddard
6 Anita G1somino
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INDEX TO TESTIMONY
DIRECT CROSS REDIRECT
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72 72
73 76
79
RECROSS
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1 PRO C E E DIN G S
2 CHAIRMAN MOTTER: Let's call this hearing to
3 order. The record is still open from last month for the
4 application for the Chinese restaurant.
5 Is Mr. Lee here?
6 CHUNG LIN: Mr. Lin, L-i-n.
7 CHAIRMAN MOTTER: Is it Lin?
8 CHUNG LIN: Yes.
9 CHAIRMAN MOTTER: All right. Those people who
10 were not here last month, okay, this is a hearing, and says
11 all persons present, comments and testimonies in this
12 matter must do so under oath.
13 All persons intending to give comment and
14 testimony shall now please rise and raise their right hand
15 while the court reporter administers the oath.
16 (Witnesses sworn en masse.)
17 MR. SCHORPP: Let's go off the record just a
18 minute.
19 (Discussion held off the record.)
20 MR. SCHORPP: Mr. Lin, your application that you
21 presented to the zoning board
22 CHUNG LIN: Excuse me. English very little.
23 CHAIRMAN MOTTER: Yes.
24 CHUNG LIN: I can speak Chinese. I can speak
25 Chinese.
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1 CHAIRMAN MOTTER: Well, that's not going to do
2 the Board
3
4 CHUNG H. LIN, having been previously duly sworn,
5 testified as follows:
6
7 DIRECT TESTIMONY
8 THE WITNESS: I've been in United State long
9 time, 32 years. Okay, I open a restaurant. I open a
10 restaurant, four restaurant. One is Carlisle across Weis
11 Market. The other one in the South Hanover mall, China,
12 Inc., and Big China. And before I open this, the type of
13 restaurant, I take a application in the restaurant
14 (inaudible) Mr. Dennis Russell. He said, no, no, no, no,
15 no problem, you can open, no problem. Okay.
16 I take it this way. I go to the Hanover,
17 Hanover, there's a trailer blueprint. I send to here. He
18 said, okay, this one good. I pay receipt. Everything I
19 pay to this one, only this the government say this okay.
20 Then go to the (inaudible), come to here, check (inaudible)
21 fake.
22 I only take a good one, no (inaudible), because
23 before they start my business. Then I have a business
24 because of this war. Everything I have a couple of
25 (inaudible) this way, this way, this in here, what is in
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1 here. I don't pay this -- you know, you can come to my
2 restaurant, Golden China. That's the Carlisle, you know.
3 So because I open this one, I go to this, send
4 to this application. He said, Dennis Russell said, no, no,
5 no, no problem, you can open. I say, you okay? He said,
6 okay. I English no, no very good, you know. I told you
7 this the blueprint.
8 He said no problem, you can open, no problem.
9 Then I go to the, my neighbor for, you know, because I
10 English no very well. So I told this my neighbor. He said
11 okay, okay, okay, no problem, no trouble. I don't know
12 trouble. I don't know.
13 MR. SCHORPP: Well, wait a minute. Mark, do you
14 have any questions of this gentleman?
15 MR. MATEYA: I do. Would you like me to stay
16 here?
17 MR. SCHORPP: Wherever you are comfortable.
18 For the record, I just want to indicate that
19 Dennis Russel, the gentleman referred to, is the zoning
20 officer for Mount Holly.
21 CROSS-EXAMINATION
22 BY MR. MATEYA:
23 Q. Actually that was my first question, was going
24 to be who was the person, and that was -- am I right,
25 Mr. Lin, that was Dennis Russell you spoke with? Mr. Lin,
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you spoke with Dennis Russell from Mount Holly Zoning
Board?
A. Yes.
Q. And he told you you can open with no problem?
A. Yes.
Q. And did he give you any paperwork to fill out?
A. No paperwork. I take it this way. He said no,
no, no, no, no. I put in here eight times. He said I
(inaudible) he is here. I say, okay, no problem, three
(inaudible) and half I go here. He say, okay, okay, you
can open, no problem. Okay?
Then the Jim, you know Jim. He don't take this
write down for me; I don't know. He said write down only
name for me and telephone number, you can call. I said
call you. He said, okay, no problem.
So I take it, go to the Hanover, you know,
blueprint, the John. I don't know a John. I call. He say
call. He said okay, no problem, you know, no problem. I
have the blueprint in a couple of years. Okay, okay, this
one, this one, okay. Then I in trouble. I don't know.
DENNIS GODDARD: Excuse me. The only reason I
was raising my hand, I have talked with these folks, and
I'm the owner of the property. And, again, because he is
hard to understand, if I can interject. He said it was
okay for me to talk. I was in on what he's talking about.
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MR. SCHORPP: You'll have a chance to talk.
MR. MATEYA: If I need it, that's fine.
BY MR. MATEYA:
Q. Mr. Lin, when did you speak with him?
A. I take it this one go to the (inaudible) he say
I bring you for the house, you know, I go to here take the
application. He say no. Outside is the people, two
people. You got fat, you got small.
CHAIRMAN MOTTER: Mr. Lin
THE WITNESS: No? I know you appreciate. Okay?
You speak Chinese?
MR. SCHORPP: Just answer this gentleman's
question.
THE WITNESS: He said I don't know. You can
translate (inaudible) you can for me translate?
BY MR. MATEYA:
Q. No. My only question was, when did you speak
with him?
ANITA GLSOMINO: Before when we opened --
MR. SCHORPP: Well, wait a minute. He's
testifying. We have to do this orderly. Mr. Lin, you have
to answer his question.
ANITA GLSOMINO: I don't know if he understands
it.
MR. MATEYA: Yes. And if I could, if the family
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can help interpret just for something simple like this,
that's okay with me. Is that all right with you?
MR. SCHORPP: They can talk.
MR. MATEYA: Now, the question again was when
did you talk with the zoning hearing board?
ANITA GLSOMINO: Before we open the business, we
talk to him.
THE WITNESS: I say maybe January -- not
December, November. December, November.
January.
December.
I don't know.
MR. SCHORPP: Next question. We're going to be
here all night. Let's keep this moving.
BY MR. MATEYA:
Q. Did he give you anything in writing, any paper
that says it's okay for you to --
A. No, no give me anything. He only said you can
open, no problem. I say you give me the paper. He said
no, no, no, no, you know.
MR. SCHORPF: Your answer was no paper, correct?
THE WITNESS: No paper.
MR. SCHORPP: Next question.
BY MR. MATEYA:
Q. Okay. Did he ask you to sign anything?
A. No.
Q. Nothing?
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A. Nothing.
MR. MATEYA: Can I have one moment to talk with
my client?
(Attorney Mateya conferring with client.)
BY MR. MATEYA:
Q. Mr. Lin, I'll make it brief. Did you need any
building permits, any type of special permits to open?
A. Okay. So I go to eight times; no paper for me.
I don't know paper, no. Last time I go to him, he said,
um-hum. I told that the Hanover blueprint, you give me the
right blueprint, you know, open the restaurant, blueprint,
you know. He call, he said, no, no, no, application you
can open; before this is restaurant; before this place is a
restaurant, you can open no problem.
Q. Next question is, you know the big fan that's in
the back and you know that's been part of the problem, the
exhaust fan. Did you put that in, that fan, or did the
owner of the building put that fan in?
A. Before the pizza shop has one. Same one.
Before this pizza shop, same one.
Q. It was the same fan?
A. Same way, same fan, same same.
MR. MATEYA: At this point, I don't think I have
any other questions. I would like to reserve the right to
come back depending on where the testimony goes, but I
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think I'm happy with what I have.
MR. SCHORPP: Does anybody else want to testify
here on behalf of the Applicant?
RITA BOYER: I would like to say something.
MR. SCHORPP: Name and address, please.
RITA BOYER, having been previously duly sworn,
testified as follows:
DIRECT TESTIMONY
THE WITNESS: My name is Rita Boyer. I live at
22 South Walnut Street, but I rent from Dennis Goddard
also. I own the tanning salon right beside Mr. Lin. It is
not the same fan, but it is in the same place that a fan
was before. And as far as smell goes, I think if anybody
could smell it, it would be me, and there is no problem.
We can smell the laundromat more than we can smell
Mr. Lin's Chinese restaurant.
MR. SCHORPP: Any questions of this witness?
MR. MATEYA: Just one or two brief ones.
CROSS-EXAMINATION
BY MR. MATEYA:
Q. How far is the laundromat from you?
A. Across the street where the bridge has been
taken out.
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Q. So a distance from the laundromat you smell it?
A. Yes, absolutely.
Q. You think is it possible that a distance from
the fan you might smell it?
A. I'm right next door.
Q. Well, I didn't say right next door. I said a
distance from it, like when a fan kicks it outside, you
don't think you'd smell it if you were out that far?
A. I walk to work every day. I walk down that
alley, and I have yet to smell it. And Mr. Lin is there
cooking when I arrive.
MR. MATEYA: Fair enough. Thank you.
CHAIRMAN MOTTER: Any other testimony?
Yes, sir?
DENNIS GODDARD, having been previously duly
sworn, testified as follows:
DIRECT TESTIMONY
THE WITNESS: My name is Dennis Goddard, and I'm
the owner of the property, and I would like to make a
statement to this Board when they consider their decision.
This is not a matter of right or wrong there.
This is a matter of a neighbor who dislikes, for whatever
reason, me and my property, and it's been 15 years with him
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1 in regards to this. And I asked him, what did I ever do to
2 you that you dislike this place -- all my employees know
3 it; everybody knows it -- what did I do.
4 His answer was, you never asked me for
5 permission to use the alley. My comment was, well, you
6 don't own the alley. Up until a month ago when Cindy there
7 asked him, this is the first time that he ever admitted
8 that he did not own the alley, that he always owned the
9 alley and that I had no rights.
10 In 15 years, I might have used that alley four
11 times for construction. And when he saw that construction,
12 instead of being neighborly and going out the other exit,
13 he pulls behind them, swears up a blue streak, come on to
14 me like you would not believe was swearing. I mean, I
15 haven't heard anybody swear like that.
16 This is the neighbor. We would not have any of
17 this meeting wasting your time or anybody's time if it were
18 not any other neighbor than that person. He said to me
19 sometime ago, he says, I don't care what it costs them. He
20 says, it's not my problem, I don't care.
21 Well, we've got an estimate on it, and all of
22 this cost business -- if any of you've ever had a business,
23 this meeting costs. There's so many costs on the business.
24 The smell, he's stretching out in the midair. There was a
25 pizza shop there for 15 years. No air-conditioning, no
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1 heat, no updated stuff like these folks have put in. They
2 left their back door open with a fan directed at his
3 property.
4 Never once did I hear anything in regards to
5 that. He is stretching for straws, and I want to make sure
6 that you understand. This isn't a thing of my smell and my
7 property and it's degrading. It's a vendetta against this
8 property, and I still would like to know what we ever did
9 to you, whatever we did to you to make you this way. And
10 he won't answer it except the answer he gave me, I didn't
11 ask permission to use his alley. Well, it's not your
12 alley.
13 And, by the way, I would like to clarify, I
14 checked with three folks about moving the fan. And if you
15 could follow me a second on this, if you take the fan, if I
16 may come up there
17 MR. SCHORPP: You're going to have to describe
18 it for the record. You can't show it.
19 THE WITNESS: Okay. It's the fan coming out the
20 back that he is saying is causing the smell, and the fan is
21 a round disc. If the fan is -- this is the top of the
22 building; the fan is located here.
23 If the fan is moved up to here, you will have a
24 worse smell, a worse odor that you're claiming. All three
25 of them said that by going up there, the wind now directly
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hits the fan and pushes it. The fan down here, the wind is
less force on forcing the smell that is so bad to this
person. So it's counterproductive to move it. In fact, if
it is moved, it will be worse for him and his property.
It just doesn't make any sense. And that's
three people that should know where to stop. And this is
not a small cost for a business. This is horrendous what
you're doing, and you should be told.
MR. MATEYA: If I may ask a question of
Mr. Goddard.
CROSS-EXAMINATION
BY MR. MATEYA:
Q. Mr. Goddard, you said that there were three
different folks that you spoke with about this as a
potential, a potential repair. Did they know you were
coming to a hearing tonight?
A. Yes.
Q. Did you invite any of them here to testify?
A. No.
Q. Was it possible for you to invite them here to
testify to give some expert testimony?
A. I probably could have.
Q. But you chose not to?
A. I don't think it would be necessary. I think
that there's intelligent people there that could figure
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that if you set something up on top --
Q. If I can --
A. If the direct wind had it --
Q. Now
MR. SCHORPP: Wait a minute. Let him explain
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THE WITNESS: There's intelligent people in this
audience, most of them, that can figure that if you stick
this fan on top, now the wind has direct access to that
fan, not down here. It doesn't have direct access to it.
Anybody can figure that out. They all told me that.
BY MR. MATEYA:
Q. SO they all told you that. Do you have anything
since you knew a month ago we were coming here tonight for
this hearing, do you have anything in writing from any of
them that shows that other than we have to take your word
on it?
A. No. I have a bid on moving it.
Q. But no testimony about what the conjecture is
that you just talked about?
A. No.
MR. MATEYA: I'd like the Board to consider that
that's one man's conjecture.
THE WITNESS: Well, I think you're an
intelligent man, you can figure that out yourself.
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BY MR. MATEYA:
Q. And you have one bid?
A. Yes, because the other fellow that did it does
not do it anymore. He's down to one person, and he says
that he no longer can get the help to do it. He was in the
business for 30 years.
Q. Okay. I understand. Is it possible to make the
repair?
A. Is it possible to waste the money and get the
results?
Q. I don't know. Is it possible for me to kick
four field goals too? I'm asking you is it possible to
make the repair?
A. I don't see what the repair would be.
Q. Moving the fan and --
A. You want to back me up in a corner. This isn't
a repair to fix something if it goes on; the work is going
to be worse for this labor of mine.
A. Well, again, that's your conjecture.
A. That's a fact.
Q. No, no. But is it possible?
A. The fellow laughing next to you who is an
engineer, he knows all the answers. He knows all the
answers.
MR. MATEYA: I think we've got all we need to
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lout of it. Thank you.
2 THE WITNESS: You're welcome.
3 CHAIRMAN MOTTER: Yes, ma'am?
4 MR. SCHORPP: We need your name.
5
6 ANITA GLSOMINO, having been previously duly
7 sworn, testified as follows:
8
9 DIRECT TESTIMONY
10 THE WITNESS: Anita G1somino, G-l-s-o-m-i-n-o.
11 I think everybody has the kitchen, right? You cook, you
12 have smell, yes. Smell is good, is right? The food
13 is -- when you cook, the smell is very good. When you
14 smell out back, you have barbecue anywhere, right?
15 Smell is only, is no garbage. If garbage smells
16 bad, we'd know. It's not good. But Holly Inn, is same
17 thing there. Why he not complain the Holly Inn? Why they
18 complain that our fan is some kind of problem?
19 CHAIRMAN MOTTER: The Board understands that,
20 ma'am. We understand about the exhaust fan and the smell.
21 THE WITNESS: The food is good; is not bad.
22 CHAIRMAN MOTTER: Go ahead, Mr. Lin.
23 CHUNG LIN: You notice my High Street only
24 people, how many people here, Carlisle, it's restaurant,
25 you know. I have smell, same same. Nobody complain. I
80
1 don't know what it's difficult to here. He said I only
2 one. You got Holly Inn and Deer Lodge and the pizza shop
3 in here. I'm not Chinese; I am American. I've been here
4 United state 32 year. I right now I have both, you know, I
5 have United state (inaudible) 18 years ago. I am American,
6 no Chinese. I like America, so I've been here United state
7 32 years because it came easy, not too difficult for me.
8 You understand?
9 CHAIRMAN MOTTER: Yes. The Board understands.
10 Yes, ma'am?
11 RITA BOYER: In regard to what Mr. Goddard was
12 talking about, I'm the only tenant there who has not had
13 problems with Mr. Fahnestock. He has been very nice to me.
14 We had a tractor-trailer back in that alley that belongs to
15 all of us, and there was no complaint.
16 I've had electrical trucks parked in that alley
17 that took half a day. There were no complaints. I knocked
18 on his door when I had another problem, and I spoke with
19 his wife, and she thanked for me telling them that the
20 alley would be blocked. Everybody else that has been in
21 that building has had confrontation with Mr. Fahnestock.
22 CHAIRMAN MOTTER: Any other rebuttals? Any
23 other testimony?
24 At this time, we will close the record and have
25 an executive session to make our decision.
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(The Board went into executive session.)
CHAIRMAN MOTTER: The Board is back in session.
At this time, do I hear a motion for the application from
the Board?
BOARD MEMBER SLYDER: I would make a motion that
we approve the Special Exception as applied for.
CHAIRMAN MOTTER: Do I hear a second?
BOARD MEMBER THOMPSON: I will second that.
CHAIRMAN MOTTER: At this time, the Board
approves the application.
MR. SCHORPP: You need to vote.
CHAIRMAN MOTTER: Do I hear approval? All those
in favor, say aye.
( Chorus of ayes. )
CHAIRMAN MOTTER: Okay. At this time, this
concludes the zoning board hearing for Mr. Lin.
MR. SCHORPP: There will be a written decision
that will be forwarded within the next 45 days as required
by law.
MR. MATEYA: Can I ask one question of the
Board? One of the issues that began all of this is the fan
that sticks out into the alleyway. Is the Board just not
going to address that at all?
MR. SCHORPP:
MR. MATEYA:
It's implied in the decision.
It's implied?
82
1 CHAIRMAN MOTTER: Yes.
2 MR. MATEYA: Will it be specifically --
3 MR. SCHORPP: You'll get a written decision.
4 MR. MATEYA: Okay. And you're going to address
5 that?
6 MR. SCHORPP: We'll address what's necessary.
7 I'm not going to get into that right now.
8 MR. MATEYA: Thank you.
9 (The hearing was concluded at 8:10 p.m.)
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1 I hereby certify that the proceedings and evidence
2 are contained fully and accurately in the notes taken by me
3 on the within proceedings, and that this copy is a correct
4 transcript of the same.
5
6
NOTARIAL SEAL
Amy R. Fritz, Notary Public
City of Carlisle, Cumberland County
My commission expires February 9" 2006
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A~ J2.:(~
Amy R. Fritz, Notary PU~iC
Registered Professional Reporter
14 The foregoing certification does not apply to
any reproduction of the same by any means unless under the
15 direct control and/or supervision of the certifying
reporter.
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To the Borough of Mt. Holly Springs,
I Chung Lin give permission to extend a decision till the August 9th meeting
(jftJ4..-----.~j.------ L V /J
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JUL 1 3 res \U
ZONING HEARING BOARD OF
MOUNT HOLLY SPRINGS
: RE: CHUNG UN
: 15 SOUTH BALTIMORE AVENUE
: MOUNT HOLLY SPRINGS, P A
: CASE NO: 002-2005
: DATE OF DECISION: AUGUST 9, 2005
DECISION OF THE
ZONING HEARING BOARD
~,
The Mount Holly Springs Zoning Hearing Board (herein, Board) met on Tuesday, July 12
and Tuesday, August 9, 2005 at 7:30 P.M" in the Hearing Room of the Municipal Building at 200
Harman Street, Mount Holly Springs, Cumberland County, Pennsylvania, at which times and place
testimony was taken in a hearing for captioned application.
A request has been submitted by Chung Lin for approval of a special exception to establish
a Chinese restaurant, without drive-through facilities (Restaurant), in a unit of a commercial property
at 15 South Baltimore Avenue. The premises is situated in the V-2 [Village District 2] District.
Section 502B(2) ofthe Mount Holly Springs Zoning Ordinance permits a restaurant, without drive
through facilities, as a special exception in the V-2 [Village District 2] Zone.
Chung Lin, the Applicant, and Dennis Gotthard, the owner ofthe premises, testified in favor
of the application, as did an adjoining tenant, Rita Boyer. Max Fahnestock, the immediate
landowner to the south, testified in opposition to the request. Other neighbors, Pam Still, Rebecca
O'Donnell, Shannon Schmitt, and Vicky Fahnestock also testified in opposition. Mr. Fahnestock
was represented by Mark A. Mateya, Esquire. Mr. Lin appeared pro se,
From the testimony, the Board makes the following:
FINDINGS OF FACT
I. The property is located in the V-2 Village District 2.
2, The use, a Chinese restaurant, is being conducted in a unit of the premises at 15
South Baltimore Avenue.
3. The property at 15 South Baltimore Avenue is owned by Dennis Gotthard.
4. The Restaurant commenced business in January, 2005, and has been in continuous
operation since that time.
5. The unit is located in a multi-unit commercial complex seryiced by an on-site
parking lot which is shared by other tenants.
6. The unit was previously used as a pizza shop for approximately 13-15 years.
7. Prior to occupying the premises, and upon his inquiry, the Applicant was informed
by the Borough's Zoning Officer, Dennis Russell, that his use was permitted.
8, Other agencies having jurisdiction over building matters informed the Applicant that
he could proceed to open the Restaurant.
9. Based on the assurances from the Zoning Officer and other authorities, the Applicant
committed substantial funds to a lease, equipping the restaurant and replacing the
exterior fan system,
10. At all relevant times, the Applicant acted in good faith.
11. Based on the assurances, the Applicant commenced his business in January, 2005.
12, The Applicant is a naturalized United States citizen who has a limited ability to speak
English and who operates various restaurants in the area,
13. The Applicant used due diligence in seeking approvals prior to commencing his
business.
14. At some point after commencing his business, the Applicant was informed by the
Zoning Officer that he would have to apply and be approved for a special exception
in order to continue the Restaurant at this location.
15. Max Fahnestock owns the adjacent property at 17 South Baltimore Avenue, as well
as premises at 19 and 23 South Baltimore Avenue.
16. The Fahnestock property is separated from the subject premises by an alley and,
although it is unclear whether the alley is public or private, it has been used by the
public and the owners of the adjoining properties for many years, A deed restriction
prohibits obstructing its use.
17. The Restaurant is vented by an exhaust fan onto the alley between the Gotthard and
Fahnestock properties. The fan is approximately 6 feet above grade, of a torpedo
type and is mounted above an air conditioning unit placed at grade.
13. Th;; filiJ. ~~d ilir ,:::ciiditi01ii1ig uiiit EiiC depicted vn photos a.J.ui..iticu C1::i Pluic;;;sii1l1l::S'
Exhibits 1-4, as is an outdoor staircase which has existed for many years.
2
19. The fan and air conditioning unit do not project further into the a;lley than the outdoor
staircase.
20. The fan, air conditioning unit and staircase do not obstruct vehicular traffic using the
alley.
21. Not one witness opposed the use of the premises as a restaurant.
22. The fan is located in the same physical location as a prior fan, of different type,
. ,',
which serviced the pizza shop,
23. Neighbors testified that the fan emits a noise typical of exhaust fans and vents
cooking odors amounting, at worst, to a "nuisance," "not intolerable" and "slightly
annoying."
24. Mr. Fahnestock claims that the fan vents a very pronounced and strong odor. The
Board finds the testimony of the neighbors to be more credible than Mr.
Fahnestock's testimony in this respect.
25. The cooking odors emanating from the fan do not interfere in a meaningful or
substantial manner with the neighbors residential activities.
26. Mr. Fahnestock previously appeared before this Board to express concerns about the
uses in the Gotthard property (See Docket No. 001-2005), and has personal issues
with Mr. Gotthard.
DISCUSSION
The proposed use is a restaurant with no drive-through facilities and is permitted by special
exception in the V-2 Village District 2 Zone, g502B(2), Mount Holly Springs Zoning Ordinance
(herein, Ordinance). The applicant for a special exception has the burden to demonstrate that he
meets the criteria specified in the zoning ordinance. Those criteria are set forth in Section 901A of
the Ordinance. As a special exception use, and given the commercial nature of the area, the Board
finds that the use is consistent with the intent of the Ordinance. In this respect, not one witness
testified in opposition to the use of the premises as a restaurant. The testimony related solely to the
noise and cooking odors emanating from the fan on the side of the building,
Before addressmg the special exception request, the Board finds that the testimony presents
an issue as to whether the Applicant acquired a vested right to the permission and permits issued by
3
relevant authorities in January, 2005. In Petrosky v. Zoning Hearing Board of Upper Chichester
Township, 485 Pa. 501,402 A.2d 1385 (1979), the Supreme Court of Pennsylvania adopted five
criteria relating to vested rights as set forth by the Commonwealth Court of Pennsylvania in
Department of Environmental Resources v. Flvnn, 21 Pa, Commw. 264, 344 A,2d 720 (1975):
1, The Applicant's own due diligence,
2, His good faith. .
3. His expenditure of substantial unrecoverable sums,
4, The expiration of the applicable appeal period.
5, Absence of injury to the public interest.
The Applicant testified that the zoning officer and other affecting agencies gave him
unconditional approval to open his business in early 2005. Given his limited background and those
assurances, he had no reason to question his right to proceed. He in acted good faith. Whether he
purchased the assets of the previous pizza shop, or outfitted the restaurant with new equipment, it
is obvious that he expended substantial funds in committing to a lease and purchasing restaurant
equipment, including the replacement fan. The appeal period has long since expired and the Board
finds no significant injury to the public interest. Under these circumstances, the Applicant acquired
a vested right to continue his use and consideration of the special exception request need go no
further.
Nevertheless, the Board also finds that the requirements for approval of a special exception
are met in this case. A restaurant use in this location is consistent with the intent of the zoning
ordinance, as it is specifically identified as a use to be allowed as a special exception in this zone.
Given that a pizza shop previously existed in the neighborhood for many years, the Board finds no
substantial change in the neighborhood, Further, adequate facilities, including municipal utilities
and parking, exist to serve the use, The use is not in conflict with other laws and there is no evidence
that it will result in traffic congestion or other safety hazards. The building has been used
commercially for a number of years. No structural changes to the building exterior were projected
and no site changes will be made. No testimony was presented to demonstrate that light intensity,
litter, noise, hours of operation or other factors would adversely affect the adjoining uses.
ib.:: DOwd 51-1\:15 tllat LIl" U1J1Jv:silion is soieiy aimed at the fan dIrectIon and cooking smell,
not the restaurant use, The neighbors categorized the odor as more of an outside nuisance or
4
annoyance and the Board finds that no significant adverse effect is being caus~d by the use. No one
substantiated a loss in property value, damage to property (clothes) or significant loss in the ability
to enjoy their residences, Most restaurants generally emit cooking smells into the surrounding area.
Although there was testimony that this restaurant may emit stronger odors, the testimony does not
support a finding that the odors have a significant adverse impact on the neighborhood. Indeed, the
next door tenant, Rita Boyer, testified that she experiences no odors from the restaurant and tneother
neighbors described the odor as more of an annoyance than a serious detriment on their use of their
properties. Mr. Fahnestock categorized the odor in stronger terms, but the Board finds the other
witnesses to be more credible in this regard. Additionally, given that the Applicant received all
building approvals, the Board can assume that the exhaust system meets governmental requirements
and no testimony was presented to the contrary. The Board further queries, had Mr. Lin obtained
the special exception prior to opening, whether he would have encountered opposition on the basis
of cooking odors.
CONCLUSIONS OF LAW
1. At all relevant times, the Applicant acted in good faith with due diligence,
2. The applicant reasonably relied on the permission from the Zoning Officer and other
authorities and committed substantial unrecoverable funds to the Restaurant.
3. A restaurant, without drive-through facilities, is a permitted special exception use in
the V -2 [Village District 2] Zone under Section 502B(2) of the Ordinance.
4. The Applicant has met his burden for allowance of the grant of a special exception
for the Restaurant at the subject premises.
5. No one demonstrated by credible evidence that there would be substantial adverse
impact from the proposed use which would warrant denial of the request.
6. The Restaurant has caused no injury to the public interest.
7. The Applicant has a vested right to continue the Restaurant use.
S, The request for a special exception to establish a restaurant without drive-through
facilities at the subject premises must be approved.
5
ORDER OF THE BOARD
The Applicant has a vested right to continue his restaurant use at the subject premises,
Further, and to the extent applicable, the Applicant's request for a special exception to establish a
restaurant, without drive-through facihties, at the subject premises is approved.
Anyone aggrieved by tge decision of the Board with respect to th.e grant of the application
has the right to appeal to the Cumberland County Court of Common Pleas within thirty (30) days
from the date of this decision."
Date:
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C. Single-family and Two-family attached dwelling units
D. Two-family detached dwelling units
E. Home occupations
Z. PublicJSemi-Public. Uses
A. Churches andsiinilarplaces of worship
B. Public or Private pre-school,. primary, and secondary educational facilities and
related educational/school uses
C. Municipal and related governmental buildings and uses
D. Community Centers
3. Commercial Uses
A. Retail services
B. Professional, scientific, and technical services
C. Personal services
D. Day Care Centers
E. Financial Institutions with or without drive-through facilities
F. Greenhouse, florist, or plant nursery facilities
G. Recreational facilities
4. Customary accessory uses and buildings incidental to any permitted. use.
Sec502B. Soecial Exceotions
The following uses may be permitted as a special exception only when authorized by the Zoning
Hearing Board, subjectto Article IX herein:
1. Convenience stores without gas pump facilities
2. Restaurants and taverns without drive-through facilities
3. Cinemas, theaters or auditoriums - excluding adult entertainment
4, Funeral homes, mortuaries, and crematoriums
5. Bed-and-Breakfast Inns
6. Hotel and motel
7. Car Wash facilities
8. Laundromat facilities
9. Health and fitness clubs
Section 503B. Heieht Rel!11lations
No building shall exceed forty (40) feet in height.
Section S04B. Lot Desim Reauirements
6
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reduction may be authorized only when the Zoning Hearing
Board makes the finding that no adverse impact shall be
created or shall result, to adjoining properties from such
action.
a. Accessory building are permitted in accordance with
Section 11 04-.
Section 503.C. Heil!ht Rel!11lations
No building shall exceed forty (40) feet in height.
Section 504C. Off-Street Parkinl!:
Off-street parking for the above uses shall be provided in accordance with Article
XII.
Section 505C. Silms
See Article VIII, Section 805.
Section 506C. Buffer Yards
When commercial uses as permitted under Section 501B.3 hereof are approved
for construction,. reconstruction, alteration, or otherwise located adjacent to residential
districts and properties, a buffer yard shall be required as set forth in Section 507 A.
SECTION 4: The Mount Holly Springs Borough Zoning Ordinance is hereby
amended to include following additional provisions in Article IX, Administration:
Section 90IA. Suecial Exceutions
Special exceptions, as provided for in this Ordinance shall be subject to all applicable
requirements, including, but not limited to:
1. The filing requirements as provided in section 901 of the Ordinance.
2. General Criteria - Each applicant must demonstrate compliance with the
following:
A. The proposed use shall be consistent with the purpose and intent of the
Zoning Ordinance.
B. The proposed use shall not detract from the use and enjoyment of
adjoining or nearby properties.
C. The proposed use will not substantially change the character of the
subject property's neighborhood.
D. Adequate public facilities are available to serve the proposed use (e.g.,
12
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schools, fire police and ambulance protection, sewer, water and other
utilities, vehicular access, etc.).
E. The proposed use shall comply with those general provisions listed in
Article XI of this Ordinance. In addition, the proposed use must
comply with all other applicable regulations contained in this
Ordinance.
3. In addition to the General Criteria identified in Section 901A.2, above,
each special exception use shall comply with the following standards:
A. Other laws - The use shall not be in conflict with other Borough
ordinances, state or federal laws or regulations.
B. Traffic - The use shall not result in traffic hazards or traffic
congestion.
C. Safety - The use shall not create a public safety hazard, such as but not
limited to fire, toxic or explosive hazards.
D, Neighborhood - The use will not negatively affect the desirable
character of an existing residential neighborhood.
E. Design - Design methods for use of the property shall provide for
adequate sight design, evergreen screening, setbacks, berming and
traffic control to avoid negative influences on adjacent uses.
4. Conditions - The Zoning Hearing Board, in approving special exception
applications, may attach conditions considered necessary to protect the
public welfare and the purposes listed above, including conditions which
are more restrictive than those established for other uses in the same
district. These conditions shall be enforceable by the Zoning Officer and
failure to comply with such conditions shall constitute a violation of this
Ordinance and be subject to the penalties described in Article X.
5. Site Plan Approval - Any site plan presented in support of the special
exceptions as set forth in this Ordinance shall become an official part of
the record for said special exception. Approval of any special exception
will also bind the use in accordance with the submitted site plan; therefore,
should a change in the site plan be required as part of the approval of the
use, the applicant shall revise the site plan prior to issuance of a zoning
permit. Any subsequent change to or a different use on the subject
property not reflected on the originally approved site plan shall require the
obtainment of another special exception approval.
6. Compatibility - The Zoning Hearing Board shall only permit a special
exception use if it determines that the use would be compatible with all
adjacent dwellings. In making such a determination, the Board shall
consider such matters as light intensity and glare, litter, noise, odor, hours
of operation, character of use and number of employees of the proposed
special exception use.
lJ.
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ARTICLE IX
ADMINISTRATION
SECTION 900. AMENDMENTS TO ZONING ORDINANCE.
The Borough Council may amend the Zoning Ordinance by complying with the
requirements set forth in Article VI of "Act 247" of the Commonwealth of
Pennsylvania, as amended.
SECTION 901. ZONING HEARING BOARD.
The Borough Council shall appoint a Zoning Hearing Board, which shall have
the number of members and such powers and authority as set forth in Article
IX of "Act 247" of the Commonwealth of Pennsylvania, as amended. The
Zoning Hearing Board shall have the following powers:
1. To hear and decide special exceptions authorized in this Ordinance
based on the determination that the special exception use is
appropriate to the location for which it is proposed, consistent
with the community development plan, and consistent with the
purposes of this Ordinance. The criteria which shall be used
as a guide in evaluating a proposed special exception:
a. The presence of adjoining similar uses.
b. The nature of adjoining districts.
c. The need for the use in the area proposed.
d. Ability to screen the special exception from adjacent uses.
e. Whether the use will detract from permitted uses.
f. Sufficiency to safeguard such as traffic control, screening,
parking and set backs.
g. The nature of the surrounding uses.
2. An application for a special exception shall state:
a. Name and address of the applicant and owner of the property.
b. Name and addresses of all adjoining property owners.
c. Indication of present zoning in area.
d. Reasons for the request.
e. An accurate description of the present and proposed addition,
indicating the size of the proposed improvements, materials,
and general plans of construction. In addition a plot plan
of the real estate to be effected shall be included.
f. A description of the proposed methods of control of
development in sufficient detail to indicate the noise,
glare, air pollution, water pollution, fire hazards, traffic
congestion and other safety hazards to be produced.
g. Engineering plans and description of the methods to be used
for water supply, treatment and disposal of sewage, wastes,
refuse and storm drainage.
h. An application for a Special Exception on a form prescribed
by the Borough.
IX-l
MAX A. FAHNESTOCK AND
DORIS E. FAHNESTOCK,
Plaintiff/Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-4728 CIVIL
vs.
MOUNT HOLLY SPRINGS ZONING
HEARING BOARD,
Defendant/Respondent
LAND USE APPEAL
vs.
DENNIS GOTTHARD AND
CHUNG LIN,
Intervenors
NOTICE OF INTERVENTION
Please take notice that Dennis Gotthard, owner of the premises
at 15 South Baltimore Avenue, Mount Holly Springs, Cumberland
County, Pennsylvania, and Chung Lin, tenant at unit #3 of said
premises, owner and operator of the Chinese
Restaurant which
operates therein, which is the property directly involved in the
decision of the Zoning Hearing Board of Mount Holly Springs from
which this Appeal has been lodged, intervene in this Appeal in
support of the Decision of the Board.
It is noted that in contradiction of provisions of Section
1003-A (c) of the Pennsylvania Municipalities Planning Code (53
P.S. 11003-A (c)) the Landowner and Tenant were not served with
copies of the Appeal by the Petitioner.
Proof of service is attached.
Dale . Shu h r ,
Supreme Cou
35 East High St ,
Carlisle, PA 17013
(717) 241-4311
MAX A. FAHNESTOCK AND
DORIS E. FAHNESTOCK,
Plaintiff/Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-4728 CIVIL
vs.
MOUNT HOLLY SPRINGS ZONING
HEARING BOARD,
Defendant/Respondent
LAND USE APPEAL
vs.
DENNIS GOTTHARD AND
CHUNG LIN,
Intervenors
CERTIFICATE OF SERVICE
~
AND NOW, this ~ day of October, 2005, I, Dale F. Shughart,
Jr., Esquire, attorney for Internvors, hereby certify that I have
served a copy of the Notice of Intervention by mailing a copy of
the same by united States mail, postage prepaid, addressed as
follows:
Mark A. Mattea, Esquire
Anthony Deluca, Esquire
P. O. Box 127
Boiling Springs, PA 17007
Attorneys for Max A. Fahnestock and
Doris E. Fahnestock
Edward L. Schorpp, Esquire
35 South Thrust Drive
Carlisle, PA 17013
Attorney for Mount Holly Springs
zoning Hearing Board
Dale F. Shu har ,
Supreme Court I.
35 East High Street
Carlisle, PA 17013
(717) 241-4311
203
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